Interring The Nondelegation Doctrine

University of Chicago Law School
Chicago Unbound
Journal Articles Faculty Scholarship
2002
Interring the Nondelegation Doctrine

Eric A. Posner
Adrian Vermeule
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Eric Posner & Adrian Vermeule, "Interring the Nondelegation Doctrine," 69 University of Chicago Law
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Interring the Nondelegation Doctrine
EricA. Posnert
Adrian Vermeulett
A large academic literaturediscusses the nondelegationdoctrin4 which is said to bar Con-

gress from enacting excessively broad or excessively discretionarygrants of statutory authority to
the executive branch or otheragents. The bulk of this literatureaccepts the existence of the doctrine
and argues only about the terms of its applicationor the competence of the courts to enforce it. In
this essay, we argue that there is no such nondelegation doctrine:A statutory grant of authority to
the executive branch or other agents never effects a delegation of legislative power.Agents acting
within the terms of such a statutory grantare exercising executive power,not legislativepower. Our
argumentis based on an analysisof the text and history of the Constitution, the case law, anda cri-
tique offunctionaldefenses ofthe nondelegationdoctrine that have been proposed by academics.
INTRODUCTION
One of the most exhaustively analyzed topics in public law is the

"nondelegation doctrine," which holds that Congress must supply an
"intelligible principle" to guide its agents' exercise of statutory author-
ity.' Our excuse for writing this brief essay on delegation is that we
have come to hold a far cruder, less nuanced view than any currently
found in the literature. The literature, with some notable and honor-
able exceptions," focuses on whether judges can successfully enforce
t Professor of Law, University of Chicago.

t Professor of Law, University of Chicago.
Thanks to Beth Garrett, Jack Goldsmith, David Strauss, Catherine Struve, Cass Sunstein,
John Manning, and participants at a University of Chicago faculty workshop for their helpful
comments, and to Alex Gillette and Tana Ryan for research assistance.
1 J.W. Hampton, Jr., & Co v United States, 276 US 394,409 (1928) (holding that a delega-
tion by Congress of the ability to adjust the rates of import tariffs did lay down an "intelligible
principle" when it specified that the tariffs could be adjusted within a statutorily prescribed
range in order to "equalize the ... differences in costs of production in the United States and the
principal competing country"). Id at 401, quoting Section 315(a) of Title 6 of the Tariff Act of
September 21,1922,42 Stat 858,941.
2 The honor roll of scholarship that advances serious critiques of nondelegation includes
Patrick NV.Duff and Horace E. Whiteside, Delegata Potestas Non Potest Delegark A Maxim of
American ConstitutionalLaw, 14 Cornell L Q 168 (1928) (discussing the history and influence of
the nondelegation doctrine); Kenneth Culp Davis, 1 Administrative Law Treatise § 2 at 76-81
(West 1st ed 1958) (reviewing delegations of power); Harold J. Krent, Delegation and Its Discon-
tents, 94 Colum L Rev 710 (1994) (criticizing and praising David Schoenbrod's work); Jerry
Mashaw, Greed, Chaos, and Governance: Using Public Choice to Improve Public Law (Yale
1997); Peter Schuck, Delegation and Democracy: Comments on David Schoenbrod,20 Cardozo L
Rev 775 (1999) (criticizing David Schoenbrod's proposal to resurrect the nondelegation doc-
trine); David Epstein and Sharyn O'Halloran, The Nondelegation Doctrineand the Separationof
Powers:A PoliticalScience Approach, 20 Cardozo L Rev 947 (1999) (using political science the-
1721
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1722 The University of Chicago Law Review [69:1721
such a doctrine (either through constitutional review or through statu-

tory interpretation) and whether judicial enforcement would produce
good or bad present-day consequences. All this is entirely too respect-
ful of the alleged constitutional rule limiting the scope or terms of
statutory grants of authority to the executive. In our view there just is
no constitutional nondelegation rule, nor has there ever been. The
nondelegation position lacks any foundation in constitutional text and
structure, in standard originalist sources, or in sound economic and po-
litical theory. Nondelegation is nothing more than a controversial the-
ory that floated around the margins of nineteenth-century constitu-
tionalism-a theory that wasn't clearly adopted by the Supreme Court
until 1892, and even then only in dictum.4 The Court's invocation of
the rule to invalidate two statutes in 1935 was nothing more than a lo-
cal aberration,' no more to be taken as constitutionally fundamental
than, say, the original package doctrine, the doctrine of irrebuttable
presumptions, or any of a myriad other constitutional eccentricities
ory and statistical tests to derive a theory to determine variations in the amount of authority
granted to the executive branch); David B. Spence and Frank Cross, A Public Choice Casefor the
Administrative State, 89 Geo L J 97 (2000) (using public choice theory to argue that the adminis-
trative state promotes democracy). None of these scholars, however, provides the comprehensive
formal and functional critique of the doctrine that we provide here. Moreover, as we discuss at
various points below, it's not always clear whether these scholars would dispense with the doc-
trine entirely, as we propose to do. An intermediate case is Cass Sunstein, who provides trench-
ant criticisms of the nondelegation doctrine, but ultimately suggests that the aims of the doctrine
might nonetheless be pursued through appropriate canons of statutory interpretation. See Cass
R. Sunstein, Nondelegation Canons, 67 U Chi L Rev 315,321-22 (2000). See also Daniel A. Far-
ber and Philip P. Frickey, Law and Public Choice: A Critical Introduction 81-82 (Chicago 1991).
We address that view below, in Part III.C.
3 For a notable recent defense of the nondelegation doctrine on originalist grounds, see
Gary Lawson, Delegation and Original Meaning, 88 Va L Rev 327 (2002). We respond to Law-
son's arguments, and to those of other proponents of the nondelegation doctrine, at various
points below.
4 See MarshallField & Co v Clark, 143 US 649,692 (1892) (claiming that Congress cannot
delegate legislative power to the president, but stating that the act in question "is not inconsis-
tent with that principle").
5 See A.L.A. Schechter Poultry Corp v United States, 295 US 495 (1935) (invalidating the
fair-competition provisions of the National Industrial Recovery Act); Panama Refining Co v
Ryan, 293 US 388 (1935) (invalidating the hot oil provisions of the National Industrial Recovery
Act). See also Carterv Carter Coal, 298 US 238 (1936) (invalidating the labor provisions of the
Bituminous Coal Conservation and Recovery Act as an unconstitutional delegation to private
parties).
6 For the original package doctrine, see Brown v Maryland, 25 US 419,441-42 (1827) (an-
nouncing that states may not tax goods in interstate or foreign commerce while said goods re-
mained in their "original packages" and had yet to "become incorporated and mixed up within
the mass of property in the country"), repudiated by Michelin Tire Corp v Wages, 423 US 276,
282-83 (1976) (overturning Low v Austin, 80 US 29 (1872), and rejecting the "original package"
doctrine as a substantive rule).
7 For the doctrine of irrebuttable presumptions, see Cleveland Board of Education v LaF-
leur, 414 US 632, 645-46 (1973) (holding that "conclusive presumptions" embodied in rules such
as mandatory maternity leave violate the Due Process Clause of the Fourteenth Amendment),
abandoned by Weinberger v Salfi, 422 US 749, 770-72 (1975) (holding that the irrebuttable pre-

2002] Interringthe Nondelegation Doctrine 1723
that few now bother remembering. The existing literature is insuffi-

ciently critical of the nondelegation doctrine's constitutional preten-
sions, and thereby perpetuates the doctrine's undead state. We hope
to lay the doctrine to rest once and for all, in an unmarked grave.
To be clear about our thesis, we agree that the Constitution bars
the "delegation of legislative power." In our view, however, the con-
tent of that prohibition is the following: Neither Congress nor its
members may delegate to anyone else the authority to vote on federal
statutes or to exercise other de jure powers of federal legislators. What
we argue, in contradiction of the usual view, is that a statutory grant of
authority to the executive branch or other agents can never amount to
a delegation of legislative power. A statutory grant of authority to the
executive isn't a transferof legislative power, but an exercise of legisla-
tive power. Conversely, agents acting within the terms of such a statu-
tory grant are exercising executive power, not legislative power. There
is nothing in the usual sources of formal constitutional argument that
changes that simple conclusion, nor does it run afoul of any plausible
argument from social welfare or democratic values.
Our argument is not that the courts lack the competence to en-
force a nondelegation doctrine. The excessive attention paid to that
question in the literature has led many to believe that the Constitution
does limit congressional grants of statutory authority, and that the Su-
preme Court's failure to enforce nondelegation since 1935 represents
a failure of nerve or of institutional capacity. That combination of
views creates a sort of guilt complex for constitutional law-the nag-
ging assumption that the current pattern in public law of sweeping
statutory grants to the executive isn't really constitutional but is an in-
evitable compromise with the necessities of modern government and
with the courts' limited capacities. We hope to offer a course of ther-
apy that will relieve constitutional law of its neurotic burden by sbow-
ing that the Constitution just doesn't contain any nondelegation prin-
ciple of the sort the standard view supposes. Courts shouldn't enforce
a nondelegation doctrine for the simple reason that there is no consti-
tutional warrant for that doctrine.
The argument is structured as follows. In Part I we will explicate
our naive view of the delegation issue, contrast it with the standard
view in the literature, and then show that the standard view lacks any
constitutional justification. On the standard view, the Constitution lim-
its the authority that Congress may grant to the president by statute,
even within the scope of Congress's constitutional powers, on the
sumptions doctrine does not apply to noncontractual claims).

8 Consider Synar v United States, 626 F Supp 1374,1384 (1986), affd as Bowsher v Synar,
478 US 714,721 (1986) ("[W]hile the delegation doctrine may be moribund, it has not yet been
officially interred by the Court.").

ground that a grant conferring "excessive" discretion upon the execu-

tive "amounts to" or "resembles" a delegation of legislative power. On
the nafve view, by contrast, any authority that the executive enjoys
pursuant to the terms of a duly enacted federal statute is simply ex-
ecutive authority in an unproblematic sense. To say that a federal stat-
ute resembles a delegation of "legislative" authority because it confers
excessive discretion on the executive is to employ a metaphor, one
that lacks constitutional roots, whatever its literary merit. None of the
standard sources of formal constitutional argument supports such an
idea.
In Part II we rebut the consequentialist and functional justifica-
tions for a nondelegation rule. Nondelegation proponents commonly
advance not only formal constitutional arguments, but consequential-
ist claims that a nondelegation rule will promote welfare-enhancing
governmental policies, advance democratic norms, or enforce the
structural design of federal lawmaking embodied in Article I, § 7. We
argue that none of these considerations justifies a nondelegation rule.
In each case, the justification is equally compatible with a regime in
which statutory grants of authority to legislative agents are not subject
to any nondelegation constraint.
In Part III we apply the analysis of Parts I and II to various set-
tings in which some form of nondelegation analysis is widely thought
appropriate-settings in which even opponents of the nondelegation
doctrine turn queasy. The first setting involves the so-called nondele-
gable powers of Congress or its constituent houses, such as the im-
peachment power. The second setting involves delegation to agents
outside the executive branch, such as private parties, states, or interna-
tional organizations. The third setting involves the use of nondelega-
tion as a subconstitutional canon of statutory interpretation.
In all of these settings we will deny that the nondelegation idea
adds any constitutionally meritorious content to the relevant debates.
First, the claim that there are "nondelegable powers" is at best an im-
precise shorthand for the valid claim that the separate houses of Con-
gress, or individual members of Congress, each possess certain distinc-
tive powers that the Congress as a whole may not authorize the execu-
tive branch to exercise. Second, a legislative grant of statutory author-
ity to nonexecutive agents is constitutional in and of itself, although of
course particular grants may in particular settings violate other consti-
tutional restrictions, such as the Appointments Clause or the constitu-
tional vesting of the "executive Power" in "a President of the United
States." Finally, discussing work by Sunstein and Manning, we argue
that nondelegation canons in statutory interpretation must be justi-
fied, if at all, solely on nonconstitutional grounds; they cannot be justi-
fied as applications of the canon of avoidance of constitutional ques-

2002] Interringthe NondelegationDoctrine 1725
tions, because in the delegation setting there is no underlying constitu-

tional question to avoid. A brief conclusion follows.
I. Two VIEWS OF NONDELEGATION

A. The NaYve View
Consider an ordinary, duly enacted federal statute, and imagine
that this statute grants the president (or any other executive officer or
independent agency)' the authority to enact rules further specifying
legal relations within the statute's scope. Statutes of this kind are
ubiquitous in federal legislation. In what sense could such a statute
ever be said to "delegate legislative authority" to the executive?
The na'fve view of delegation holds that there just is no such
sense, no understanding of delegation that can be invoked to make the
idea coherent. On the naive view, the authority that the president ex-
ercises pursuant to a statutory grant is executive authority in the core
sense. The president is simply executing the statute according to its
terms, and in obedience to the constitutional obligation to "take Care
that the laws be faithfully executed."' That is why the Supreme Court
correctly and emphatically denied, in INS v Chadha," that an execu-
tive officer exercises legislative power when performing duties, includ-
ing rulemaking, pursuant to a statutory mandate.12 On this view, the
president can be said to exercise legislative power only when creating
binding legal rules without constitutional or statutory authority.3 Cre-
9 Nothing in our account turns on the identity of the delegate; indeed, we argue below
that delegations to parties outside the federal government altogether are objectionable, if at all,
solely on grounds other than nondelegation. In this Part, we will refer to "the president" only for
convenience and to track the literature, in which delegations to the president are the core case.
10 SeeUSConstArtlI,§3.
11 462 US 919 (1983).
12 See id at 953 n 16 (1983) ("To be sure, some administrative agency action ... may re-
semble 'lawmaking ... [H]owever, '[in] the framework of our Constitution, the President's
power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker."')
(citations omitted). This simple conception has deep roots in American public law. See, for ex-
ample, United States v Grimaud,220 US 506, 521 (1911) ("[T]he authority to make administra-
tive rules is not a delegation of legislative power."); Railroad & Warehouse Commission v Chi-
cago,Milwaukee & St Paul Railroad Co, 38 Minn 281,37 NW 782,788 (1888) (distinguishing im-
permissible delegation from valid grants of rulemaking authority, which constitute "an authority
and discretion, to be exercised in the execution of the law, and under and in pursuance of it").
Note that Chadha's position is in some tension with the rationale of Humphrey's Executor v
United States, 295 US 602 (1935), which sustained the constitutionality of an independent agency
by describing the agency's activities, pursuant to a statutory delegation, as "quasi-legislative"
rather than purely executive. Id at 628. But rejecting the rationale of Humphrey's Executor
needn't cast doubt on the constitutionality of the independent agencies. Even if those agencies
exercise executive power, it is a separate question whether every official exercising executive
power must be removable at will by, or subject to the direction of the president. For references
on that question, see note 133.
13 See Youngstown Sheet & Tube Co v Sawyer, 343 US 579, 585 (1952) ("The President's
power, if any, to issue the order must stem either from an act of Congress or from the Constitu-

ating rules pursuant to valid statutory authority isn't lawmaking, but

law execution. So according to the naive view a statute that, for exam-
ple, vested the president with statutory authority to make rules for the
regulation of interstate commerce, or to make rules of naturalization,
or indeed to make rules on any subject within the enumerated powers
of Congress, would not be objectionable on delegation grounds.
The naive view, however, does not say that it is meaningless to
speak of a delegation of legislative power. A delegation of legislative
power, in one universally recognized sense of that phrase, would arise
if Congress or its individual members attempted to cede to anyone
else the members' de jure powers as federal legislative officers, such as
the power to vote on proposed statutes. As Justice Scalia recognized in
Mistretta v United States,"4 "legislative powers have never been thought
delegable" in the sense that "Senators and Members of the House may
not send delegates to consider and vote upon bills in their place."" The
reason for that prohibition is that the Constitution creates a detailed
process for selecting federal legislators and carefully specifies who the
resulting officeholders are; delegation from other federal legislators is
not a component of the constitutionally specified process. The naive
view accepts this narrow sense of the nondelegation rule. All that the
naive view denies is that law-execution pursuant to an otherwise valid
grant of statutory authority can ever amount to an exercise of legisla-
tive power. The power that executive agents wield pursuant to a statu-
tory grant is simply executive power in the core sense.
B. The Delegation Metaphor

Against the naive view is a more sophisticated account that is of-
ten advanced to justify a constitutional nondelegation rule. On this ac-
count, sometimes a duly enacted statute can indeed be said to "dele-
gate legislative power" by granting authority to the president. A dele-
gation of legislative power in this broader, more diffuse sense is com-
tion itself!'). We say nothing in this Article about when courts should find that the delegate is or
is not acting within the bounds of delegated statutory authority. That is a question of statutory in-
terpretation, one that must be answered whether or not one also believes that there is a further
question about the constitutional validity of the delegation. One who subscribes to the nondele-
gation position might, of course, hold that statutory delegations should be narrowly construed to
avoid the constitutional question of the delegation's validity; but since we don't subscribe to the
nondelegation position, we don't think that statutes should be narrowly construed on that
ground, although there might be other reasons for doing so. See notes 137-41 and accompanying
text (discussing the canon of avoidance and its relationship to the nondelegation doctrine).
14 488 US 361 (1989).
15 Id at 424-25 (1989) (Scalia dissenting).
16 Consider Powell v McCormack, 395 US 486, 550 (1969) ("[I]n judging the qualifications
of its members Congress is limited to the standing qualifications prescribed in the Constitu-
tion.").

monly said to occur when the statutory grant of authority lacks an "in-
telligible principle" that provides a sufficient degree of direction in the
exercise of statutory authority. At bottom this is a metaphor: When an
intelligible principle is lacking, so that the degree of executive discre-
tion is too great or the scope of authority is too broad,"' rulemaking in
execution of the statute resembles or is akin to legislation, so that the
statute "in effect" delegates legislative power to the executive. 's
The source of the delegation metaphor is obscure. Most com-
monly, proponents of the delegation metaphor point to an argument
of Locke's:
The power of the Legislative being derived from the People by a
positive voluntary Grant and Institution, can be no other, than
what that positive Grant conveyed, which being only to make
Laws, and not to make Legislators, the Legislative can have no
power to transfer their Authority of making Laws, and place it in
other hands.'9
But Locke's epigram is fully consistent with the nalve view and its ac-
count of the constitutional bar on delegating legislative power; indeed
17 In the view of nondelegation proponents, either excessive discretion or excessive

breadth, or a combination of the two, may trigger the metaphor. On discretion, see, for example,
Synar v United States, 626 F Supp 1374, 1387 (1986) ("The search for adequate standards to re-
strict administrative discretion lies at the heart of every delegation challenge."); Laurence H.
Tribe, 1 American ConstitutionalLaw 982 (Foundation 3d ed 2000) ("The open-ended discretion
to choose ends is the essence of legislative power; it is this power which Congress possesses but
its agents necessarily lack and with which its agents could not be endowed by mere legislation.");
Gary Lawson, Who Legislates?, 1995 Pub Int L Rev 147, 152 (arguing that a statute effects an
improper delegation if "the agency's discretion is too large ... so that its authority partakes more
of what traditionally would be viewed as legislative power rather than executive power"). On
breadth, see, for example, Whitman vAmerican TruckingAssociations,531 US 457,474 (2001):
In the history of the Court we have found the requisite "intelligible principle" lacking in
only two statutes, one of which provided literally no guidance for the exercise of discretion,
and the other of which conferred authority to regulate the entire economy on the basis of
no more precise a standard than stimulating the economy by assuring "fair competition."
See also A.L.A. Schechter Poultry Corp v United States, 295 US 495,538-40 (1935) (objecting to
the economy-wide scope of presidential authority under the National Industrial Recovery Act).
18 Compare Zemel v Rusk, 381 US 1, 7-8 (1965) (upholding against nondelegation chal-
lenge a statute providing that "the Secretary of State may grant and issue passports ... under
such rules as the President shall designate and prescribe"), with id at 20-22 (Black dissenting)
("It is plain therefore that Congress has not itself passed a law regulating passports; it has merely
referred the matter to the Secretary of State and the President in words that say in effect, 'we
delegate to your our constitutional power to make such laws regulating passports as you see
fit.") (emphasis added).
19 John Locke, The Second Treatise of Government, in Two Treatises of Government 267, §
141 at 363 (Cambridge 1988) (Peter Laslett, ed). For judicial citations, see, for example, Bank
One Chicago, N.A. v Midwest Bank & Trust Co, 516 US 264,280 (1996) (Scalia concurring) ("It
has always been assumed that [legislative] powers are nondelegable-or, as John Locke put it,
that legislative power consists of the power 'to make laws ....not to make legislators."'); Indus-
trial Union Department,AFL-CIO v American Petroleum Institute, 448 US 607, 672-73 (1980)
(Rehnquist concurring) (quoting John Locke).

1728 The University of ChicagoLaw Review [69:1721
it is more redolent of the naive view than of the delegation metaphor.

Locke's basic distinction is between "making legislators," on the one
hand, and "making laws," on the other. This is exactly the distinction
drawn in the naive view, between the delegation of legislative power
by ceding legislative offices to nonmembers of Congress (unconstitu-
tional) and the enactment of statutory grants that vest rulemaking au-
thority in executive agents (constitutional). The former impermissibly
"makes legislators," in Locke's terms, while the latter merely "makes
laws." The standard view simply overreads the Lockean proviso on
delegation.
If the standard, casual citation to Locke doesn't justify the dele-
gation metaphor, what constitutional basis does it have? It is impor-
tant to note that the delegation metaphor carries a heavy analytic
burden. By definition, it can be invoked only to invalidate statutes that
fall within Congress's enumerated constitutional powers, including the
Necessary and Proper Clause,2 and that make otherwise unobjection-
able statutory grants of authority. It is irrelevant that there is no ex-
press enumerated power to "delegate." On the naive view, again, a
statutory grant of authority is not a delegation.
The burden on nondelegation proponents, then, is to show that
the Constitution contains some implicit principle that constrains the
20 US Const Art I, § 8, cl 18 ("Congress shall have Power ... To make all Laws which shall
be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers
vested by this Constitution in the Government of the United States, or in any Department or Of-
ficer thereof."). Gary Lawson argues that the word "proper" in the Necessary and Proper Clause
(which he calls the "Sweeping Clause") itself embodies the delegation metaphor. See Lawson,
1995 Pub Int L Rev at 152 (cited in note 17) (arguing that a statutory grant is "improper" if "the
agency's discretion is too large"); Lawson, 88 Va L Rev at 347-48 (cited in note 3). Lawson's
premise rests on an idiosyncratic reading of the Clause, one which holds that the single word
"proper" incorporates structural principles of separation of powers, federalism, and individual
rights as limits on Congress's affirmative authority. For a general discussion, see Gary Lawson
and Patricia B. Granger, The "Proper"Scope of FederalPower: A JurisdictionalInterpretationof
the Sweeping Clause, 43 Duke L J 267 (1993). A more plausible reading because a less dramatic
one, is just that the phrase "necessary and proper" is an example, among many in the Constitu-
tion, of an internally redundant phrase. Consider other instances in Article I, § 8, such as "Taxes,
Duties, Imposts and Excises" (cl 1), "Government and Regulation" (cI 14), or "organizing, arm-
ing and disciplining" (cl 16). On this view, "proper" just means "appropriate," reinforcing the Su-
preme Court's longstanding and capacious interpretation of the companion word "necessary" as
meaning "useful" or "conducive to." See McCulloch v Maryland, 17 US (4 wheat) 316, 413-15
(1819).
But even granting Lawson's premise, the conclusion of his argument doesn't follow.
"Proper," as Lawson reads it, merely bars congressional authorization to violate principles em-
bodied elsewhere in the Constitution's text, structure, or history. So Lawson's point is content-
less; "proper" has no work to do unless the relevant constitutional principle can be traced to
some other valid source of constitutional law. What we deny is that there is any such source for
the delegation metaphor. The separation of powers won't do, because executive rulemaking pur-
suant to a statutory grant is just an exercise of executive power, rather than of legislative power.
Nor is there any other textual or originalist warrant for the nondelegation metaphor, as we dis-
cuss below.

permissible scope or precision of otherwise valid statutory grants. This

burden is heavy because constitutional interpreters are properly reluc-
tant to find implicit restrictions on express textual grants of congres-
sional authority. Article I, § 9 crafts an elaborate set of express restric-
tions, such as the ex post facto and bill of attainder clauses, suggesting
by negative implication that no other limitations should be recog-
nized. To be sure, the reluctance to find additional, implicit restrictions
is just presumptive; it may be rebutted by clear evidence from text,
structure, and original understanding. The significance of the burden is
that it precludes justifying the delegation metaphor by reference to
ambiguous inferences from text and structure, by reference to isolated
snippets of originalist material, or by reference to vague generalities
about the separation of powers-the sort of unwarranted inferences
that nondelegation proponents have frequently drawn, as we shall see.
All told, there is no clear textual, structural, or historical warrant for
rebutting the presumption, and the delegation metaphor cannot carry
its burden.
1. Text and structure.

A frequently invoked idea holds that the nondelegation principle
is implicit in the Article I Vesting Clause, which provides: "All legisla-
tive Powers herein granted shall be vested in a Congress of the United
States, which shall consist of a Senate and a House of Representa-
tives."" Nondelegation proponents tend to argue, in conclusory fash-
ion, that this clause establishes that statutory grants of authority to the
executive can't be too broad or afford the executive too much discre-
tion-that the delegation metaphor is a necessary, albeit implicit, con-
stitutional principle.
But the Article I Vesting Clause does no such thing; it simply does
not speak to the point at issue. The point of contention between the
naYve view of delegation, on the one hand, and the delegation meta-
phor, on the other hand, is the question whether an otherwise valid
statutory grant of authority can ever "amount to" a delegation of
legislative authority. The naYve view denies that it can; the delegation
metaphor affirms that it can, if it confers excessive discretion. The dis-
agreement is not about whether the legislative power is vested exclu-
sively in the Congress-both views agree that it is-but about whether
a statutory grant of authority can ever violate the constitutional allo-
cation by effecting a transfer of legislative power. The Vesting Clause
does not address that dispute.
21 See US Const Art 1,§ 8,cl 3.

22 US Const Art 1,§ 1.

A related attempt to justify the delegation metaphor appeals to

an essentialist definition of "legislative" and "executive" powers. In a
recent argument, Gary Lawson rejects the naYve conception of law-
execution on the ground that it allows Congress to "transform law-
making into execution ... by the simple expedient of enacting a stat-
ute. '' n On this view, the "executive Power" that is vested in the presi-
dent by Article II "[has] substantive content. Something is not an ex-
ercise of executive power merely because it is carried out by an execu-
tive official."" But the content of the "executive" power simply is the
execution of validly enacted law, including statutes; the substantive
limitation is that the executive officer must act within the legal bounds
that the statute itself sets. Likewise, where law-execution is at issue it
shouldn't be surprising that Congress can trigger that authority by en-
acting a statute. Lawson thinks that the na've view entails that Con-
gress can determine all constitutional questions merely by saying so;
he thinks, for example, that, on the nafve view, Congress could enact a
statute denying that the Attorney General is an "Officer of the United
States" for purposes of the Appointments Clause.n But that is a
strange non sequitur. The na've view does not somehow hold that
Congress may define away the substance of constitutional rules; the
meaning of the Appointments Clause is distinct from what Congress
says it is. But because the grant of "executive power" and the injunc-
tion to the president to "take Care that the Laws be faithfully exe-
cuted"'6 themselves provide rules about law-execution, their content is
determined by the "Laws" that Congress has enacted.2
Once these unsuccessful justifications for the delegation meta-
phor are cleared away, the surrounding text and structure of the Con-
stitution can be seen to support the na'fve view of delegation. Analo-
2 Lawson, 88 Va L Rev at 344 (cited in note 3).

24 Id.
25 See id.
26 US Const Art II, § 3.
27 Similar problems afflict Michael Rappaport's critique of the naive view of delegation.
See Michael B. Rappaport, The Selective Nondelegation Doctrine and the Line-Item Veto:A New
Approach to the Nondelegation Doctrine and Its Implications for Clinton v. City of New York, 76
Tulane L Rev 265,305-12 (2001). Rappaport appeals in part to statements from Locke, Montes-
quieu, and others about the separation of legislative and executive power. See, for example, id at
306 (citing Montesquieu's assertion that "there is no liberty" when "legislative power is united
with executive power in a single person"). But as previously discussed, banalities about the
separation of powers are too general and abstract to cut between the naive view and the
standard view. The nave view, like the standard view, holds that the legislative and executive
powers are constitutionally separate and must remain so; the difference is that, on the naive view,
rulemaking pursuant to delegated statutory authority does not constitute an exercise of legisla-
tive power. Rappaport also attempts to justify the delegation metaphor by appealing to
constitutional principles of bicameralism and presentment, federalism, and checks and balances.
See id at 307-09. We critique these arguments below, in response to similar arguments by John
Manning. See notes 102-06 and accompanying text.

2002] Interringthe Nondelegation Doctrine
gous delegation problems arise under Article III, but the Supreme
Court case law conspicuously lacks any suggestion that the delegation
metaphor or the concomitant intelligible principle test constrains con-
gressional delegations to the judges rather than the executive. Con-
sider Sibbach v Wilson & Co,2s which upheld the statute granting the
Supreme Court "the power to prescribe, by general rules," procedural
rules for the federal district courts.2 The Court sustained the statute
with barely a nod to the nondelegation idea, stating brusquely that
"Congress has undoubted power to regulate the practice and proce-
dure of federal courts, and may exercise that power by delegating to
this or other federal courts authority to make rules not inconsistent
with the statutes or Constitution of the United States."' It looks very
much as though Congress may delegate legislative authority "with vir-
tually no legislative standards at all," as David Currie puts it," so long
as the delegation runs to the courts. This is a grievous puzzle for the
standard view; if Congress has illicitly given away legislative power,
why should it matter who the recipient is?
To be sure, nondelegation proponents might be able, with enough
pushing and squeezing, to shoehorn Sibbach into the line of cases that
relax the intelligible principle test when the delegate enjoys a measure
of independent constitutional authority over the subject matter.2 Here
the suggestion would be that courts enjoy inherent constitutional
power over their internal procedures. But vague substantive statutes
like the Sherman Act and the Labor Management Relations Act have
also been held to delegate broad lawmaking authority to the judges,
and surely the judiciary has no inherent constitutional authority to
make antitrust law or labor law. In any event the great advantage of
the na've view of delegation is that it dispenses entirely with the need
28 312 US 1 (1941).
29 Id at 7.
30 Id at 9-10.
31 David P. Currie, The Constitution in the Supreme Court The Second Century,1888-1986
218 (Chicago 1990). To be sure, the Rules Enabling Act at issue in Sibbach limited the scope of
the court's discretion by providing that the judicially-promulgated rules could not "abridge,
enlarge, nor modify the substantive rights of any litigant" 48 Stat 1064 (1934), codified at 42
USC § 151 et seq (2000). Once that side-constraint was satisfied, however, the statute provided
no intelligible principle to guide judicial rulemaking within the area of delegated statutory au-
thority.
32 See Loving v United States, 517 US 748 (1996) (upholding a delegation to the president
of powers related to the constitutional duties of the Commander-in-Chief); United States v Cur-
tiss-Wright Corp, 299 US 304 (1936) (upholding a delegation to the president of powers related
to constitutional authority in international affairs).
33 For the Sherman Act, see NationalSociety of ProfessionalEngineers v United States, 435
US 679, 688 (1978) (stating that the Sherman Act invites courts to "shape" the statute by "draw-
ing on common-law tradition"). For the Labor Management Relations Act, see Textile Workers
Union v Lincoln Mills, 353 US 448,450-51 (1957) (interpreting the Act to confer on the federal
courts delegated authority to fashion a common law of national labor relations).

for this sort of troublesome theoretical epicycle. On the na've view, the
only question is precisely the question posed by the Sibbach Court:
whether the delegate has complied with applicable statutory and con-
stitutional restrictions. If that analysis is good enough for statutory
delegations to the courts, it's good enough for delegations to the ex-
ecutive as well.
Finally, we might count as a structural idea the claim that consti-
tutional restrictions on the scope or precision of statutory grants are
necessary to ensure that reviewing judges can keep executive agents
within the bounds of their authority-or, as the Court put it in Touby
v United States, "the purpose of requiring an intelligible principle is
to permit a court to ascertain whether the will of Congress has been
obeyed."3 Although this idea has floated around in constitutional law8
opinions
for a long time, occasionally surfacing in Supreme Court
and treatises, 37 it's hard to see it as anything other than conceptually
incoherent. David Currie supplied the refutation by observing that
"judicial review is not an end in itself but a means of enforcing [consti-
tutional and statutory] limitations on executive authority; if there are
no limitations there is nothing to review."38 The judicial review justifi-
cation for the delegation metaphor begs all the relevant questions. If
there is no constitutional requirement of an intelligible principle, the
legal question for judicial review would be simply whether the agent
had complied with the terms of the statutory grant-and that too
would amount to "ascertain[ing] whether the will of Congress had
been obeyed."
2. History and precedent.

If the delegation metaphor lacks textual or structural underpin-
nings, what of its pedigree in originalist sources and in legislative and
judicial precedent? We aren't aware of any comprehensive profes-
sional treatment of the history of the nondelegation doctrine, so both
the historical claims of nondelegation proponents and our discussion
here should be taken as tentative and revisable. On the current state
of knowledge, however, it looks as though the delegation metaphor
lacks roots in history, tradition, and legislative or judicial precedent.
34 500 US 160 (1991).

35 Id at 168.
36 See, for example, id; Yakus v United States, 321 US 414,426 (1944) ("Only if we could say
that there is an absence of standards ... so that it would be impossible in a proper proceeding to
ascertain whether the will of Congress has been obeyed, would we be justified in overriding its
choice of means for effecting its declared purpose.").
37 See Tribe, 1 American ConstitutionalLaw at 985 (cited in note 17).
38 David P. Currie, The Constitution of the Federal Republic of Germany 131 (Chicago
1994).

a) Originalunderstandingand early practice. The earliest ex-

pression of a legal rule restricting delegation is the maxim delegata
potestas non potest delegari-he who holds a delegated power lacks
the power to delegate it [in turn].39 This was, at common law, a default
rule or interpretive canon for construing agency agreements and other
instruments; it forms the basis for Justice Story's dictum, in a private
law case, that "the general rule of law is, that a delegated authority
cannot be delegated." But it's an error to think that this common law
background supports the modem nondelegation idea.
For one thing, the maxim came with major, ill-defined exceptions
built in. As Story himself put it in his commentaries on agency law,
"the true doctrine" is that "[delegated] authority is exclusively per-
sonal, unless, from the express language used, or from the fair pre-
sumptions, growing out of the particular transaction, or of the usage of
trade, a broader power was intended to be conferred on the agent."
As far as the constitutional question is concerned those exceptions
give away the game. A basic precondition for the delegation question
to arise at all is that the relevant statutory grants of executive rule-
making power are otherwise authorized by Congress's explicitly enu-
merated powers, including the Necessary and Proper Clause. Non-
delegation proponents must explain why those enumerated powers
don't represent just the sort of provision that, in Story's framework,
create a "fair presumption" that the delegate may redelegate its pow-
ers as necessary or appropriate. But the more important point is that
the delegata potestas maxim is just too abstract to cut between the na-
Yve view of delegation, on the one hand, and the standard delegation
metaphor, on the other. Both of those views hold in common that the
legislature may not redelegate the powers delegated to it by the peo-
ple, so both views accord with the maxim's base presumption. The dis-
agreement is over what counts as an illicit delegation, and on that
question the common law provides no assistance.
What of the canonical originalist sources: the records of the con-
stitutional convention, the ratification debates, The Federalist, and
early governmental practice? From the standpoint of the modern ob-
session with the delegation metaphor, there's remarkably little evi-
dence that the Framers envisioned such a constraint on legislative au-
thority. But that shouldn't be surprising: The Framers' principal con-
cern was with legislative aggrandizement-the legislative seizure of
powers belonging to other institutions-rather than with legislative
39 See Duff and Whiteside, 14 Cornell L Q at 168-69 (cited in note 2) (attempting to dis-
cover "how the maxim came into existence" and its application in the nineteenth century).
40 Shankland v Washington, 30 US 390,395 (1831).
41 Duff and Whiteside, 14 Cornell L Q at 169 (cited in note 2), quoting Joseph Story, Com-
mentaries on the Law ofAgency § 14 at 14-15 (Little, Brown 9th ed 1882).

grants of statutory authority to executive agents. 2 The convention de-

bates contain one mention of delegation, a motion by Madison that
the president be given power "to execute such other powers, not Leg-
islative nor Judiciary in their nature, as may from time to time be
delegated by the national Legislature."4 3 The motion was defeated,"
giving rise to the usual problem of discerning the grounds on which
the proposal was rejected. A common view is that it was rejected as
unnecessary,' the authority being already implicit in the constitutional
scheme; if so, then the disposition suggests, if anything, that legislative
delegation to the executive was viewed as unproblematic.
The other canonical sources either provide less guidance or af-
firmatively undermine the delegation metaphor. The ratification de-
bates contain nothing of any real relevance.4 The Federalist contains
nothing but a passing reference, an irrelevant discussion of the dele-
gability of presidentialpowers.4 ' And provisions of contemporaneous
state law treated delegation as constitutionally unproblematic.' The
overall picture is that the founding era wasn't concerned about dele-
gation. As we shall see, the delegation metaphor flowered only much
later in the nineteenth century.
The only remotely relevant originalist evidence that nondelega-
tion proponents can muster is a handful of isolated quotations from
the post-ratification period. Besides an occasional objection to expan-
4'
sive delegations raised by members of Congress, about which more
below, there is only a single quote from Madison, to the effect that
"[i]f nothing more were required, in exercising a legislative trust, than
a general conveyance of authority-without laying down any precise
rules by which the authority conveyed should be carried into effect-
42 See James 0. Freedman, Delegation and Institutional Competence, 43 U Chi L Rev 307,
309 (1976) (reviewing the Framers' beliefs about legislative delegations).
43 Max Farrand, ed, 1 The Records of the FederalConvention of 178767 (Yale 1911).
44 See id at 67-68.
45 See Freedman, Delegation at 308 (cited in note 42) ("The motion was defeated as un-
necessary."); Davis, 1 Administrative Law Treatise § 2.02 at 79 (cited in note 2) ("[Madison's mo-
tion] was defeated as unnecessary."). Butrsee John L. FitzGerald, Congress and the Separationof
Powers 35-37 & n 88 (Praeger 1986) (questioning the conventional view, but failing clearly to
specify an alternative account).
46 A search for references to delegation in the ratification debates of Massachusetts, Con-
necticut, New Hampshire, New York, Pennsylvania (including the Harrisburg Proceedings),
Maryland, Virginia, North Carolina, and South Carolina turned up nothing relevant.
47 See Federalist 42 (Hamilton), in Benjamin Fletcher Wright, ed, The Federalist 473-75
(Belknap 1961).
48 See Davis, 1 Administrative Law Treatise § 2.02 at 79 n 14 (cited in note 2) ("Delegation
by legislatures before 1787 was common.').
49 See David P. Currie, The Constitution in Congress:The Federalist Period,1789-1801 256
(Chicago 1997) (describing objections to the proposed Alien Act by Representative Edward
Livingston on the ground that the bill "would grant the President a combination of legislative,
executive, and judicial powers").

it would follow that the whole power of legislation might be trans-

ferred by the legislature from itself.5 The problem is that the Madison
quote wasn't delivered until 1799, and even then not in the Congress
or any other federal forum; it was delivered in a debate on the Alien
Acts in the Virginia House of Burgesses. By that time, consistent early
practice had already decisively established the permissibility of statu-
tory grants to the president unchecked by any apparent intelligible
principle. Consider the following statutes enacted by the First or Sec-
ond Congress?'
* A statute providing for military pensions "under such regula-
tions as the President of the United States may direct."'2
o A statute authorizing executive officers to license "any proper
persons" to trade with Indian tribes "under such rules and regulations
as the President may prescribe." 3
o A statute authorizing the courts to "make and establish all nec-
essary rules for the orderly conducting of business in the said courts,
provided such rules are not repugnant to the laws of the United
States." 4
o A statute authorizing the Attorney General and the Secretaries
of State and War to issue patents "if they shall deem the invention or
discovery sufficiently useful or important."5'
o A statute authorizing presidential commissioners to "purchase
or accept such quantity of land on the eastern side of the [Potomac]
...as the President shall deem proper ... and according to such plans
as the President shall approve, the said commissioners ... shall ...
provide suitable buildings for the accommodation of Congress and...
for the public offices of the government of the United States."4
o A statute authorizing the Secretary of the Treasury to "mitigate
or remit fines and forfeitures in designated circumstances, without re-
quiring him to mitigate or remit." 7
50 Jonathan Elliot, ed, 4 The Debates in the Several State Conventions on the Adoption of
the FederalConstitution 560 (Burt Franklin 1888).
51 We have compiled this list of statutes from the extremely thorough discussions in Krent,
94 CoIum L Rev at 738-39 (cited in note 2) (recounting early delegations) and Kenneth Culp
Davis,A New Approach to Delegation,36U Chi L Rev 713,719-20 (1969) (same).
52 Act of September 29,1789, 1 Stat 95. See also Act of March 3,1791,1 Stat 218 (reautho-
rizing pensions to be paid out of the treasury "under such regulations as the President of the
United States may direct").
53 Act of July 22,1790, 1 Stat 137,137. David Currie describes this statute as "startling from
the perspective of the late twentieth century" by virtue of "the breadth of rulemaking power
given to the President." Currie, The Constitution in Congress:The FederalistPeriodat 86 (cited in
note 49).
54 Act of September 24,1789,1 Stat 73,83.
55 Act of April 10,1790,1 Stat 109,110.
56 Act of July 16,1790,1 Stat 130,130.
57 Davis, 36 U Chi L Rev at 719 (cited in note 51) (citing Act of May 26, 1790, 1 Stat 122,

o A statute that "authorized the President to fix the pay, not more
than prescribed maxima, for military personnel wounded or disabled
in the line of duty."'
On both originalist and Burkean grounds, these and other stat-
utes powerfully support the naive view of delegation; they presuppose
that the executive may receive statutory grants of rulemaking discre-
tion not constrained by any further intelligible principle or congres-
sional direction. Originalists believe that the acts of early Congresses
possess or confer a special originalist imprimatur, providing important
founding era evidence of the public understanding of the Constitu-
tion. 9 Burkeans believe, as did Madison, Marshall, and Frankfurter,
that consistent early practice, notably including legislative precedent,
can resolve constitutional ambiguities or even put controlling glosses
on constitutional text.6' On either count, the delegation metaphor finds
little support in the founding era, while the naive view finds a great
61
deal.
58 Id (citing Act of April 30, 1790,1 Stat 119,121)."

59 See Printz v United States, 521 US 898, 905 (1997) (Scalia) ("[E]arly congressional en-
actments provide contemporaneous and weighty evidence of the Constitution's meaning") (in-
ternal quotations and citations omitted). For Gary Lawson's contrary view that early congres-
sional enactments constitute post-ratification legislative history that provides only weak evi-
dence of contemporaneous public understanding, see note 61.
60 For Madison, see H. Jefferson Powell, The Original Understandingof OriginalIntent, 98
Harv L Rev 885, 939 (1985) ("[Madison] consistently thought that 'usus,' the exposition of the
Constitution provided by actual governmental practice and judicial precedents, could 'settle its
meaning and the intention of its authors."') (quoting a letter from Madison to John Davis, circa
1832). For Marshall, see McCulloch v Maryland,17 US (17 Wheat) 316,410 (1819):
[A] doubtful [constitutional] question ... if not put at rest by the practice of the govern-
ment, ought to receive a considerable impression from that practice. An exposition of the
constitution, deliberately established by legislative acts, on the faith of which an immense
property has been advanced, ought not to be lightly disregarded.
For Frankfurter, see Youngstown Sheet & Tube Co v Sawyer, 343 US 579,610 (1952) (Frankfurter
concurring):
It is an inadmissibly narrow conception of American constitutional law to confine it to the
words of the Constitution and to disregard the gloss which life has written upon them. In
short, a systematic, unbroken, executive practice, long pursued to the knowledge of the
Congress and never before questioned, engaged in by Presidents who have also sworn to
uphold the Constitution, making as it were such exercise of power part of the structure of
our government, may be treated as a gloss on "executive Power" vested in the President by
§ 1 of Art. II.
61 Reviewing a similar list of statutes compiled by Davis, 36 U Chi L Rev at 719-20 (cited
in note 51), Lawson objects generally to drawing originalist inferences from early statutes, de-
scribing them as "post-enactment legislative history" that provide "at best weak evidence of
original meaning." Lawson, 88 Va L Rev at 397-98 (cited in note 3). And Lawson objects in par-
ticular that some (although not all) of the listed statutes can be said to satisfy the intelligible
principle test, so that they are consistent with the delegation metaphor anyway. See id. See also
Rappaport, 76 Tulane L Rev at 310-11 (cited in note 27) (making similar arguments).
The general objection may or may not be methodologically sound originaism, but it's odd to
offer it in support of the delegation metaphor, for it powerfully supports the naive view of dele-
gation. All of the affirmative originalist evidence for the delegation metaphor-that is, the few

b) Judicial decisions. What is true of legislative precedent

from early Congresses is also true of early judicial precedent; in the
latter setting, as in the former, there is nothing to indicate that the
nondelegation metaphor can boast a venerable pedigree. The modem
literature occasionally suggests, incautiously, that "[flor almost two
centuries, the Supreme Court has understood [the Article I, § 1 Vest-
ing Clause] to limit the extent to which, or the conditions under which,
Congress may delegate its lawmaking power to executive or adminis-
trative officials."' That view is false. The nondelegation metaphor,
rather, was a legal theory of uncertain provenance that skulked
around the edges of nineteenth-century constitutionalism, and wasn't
clearly adopted by the Court until 1892.
Commentators sometimes attempt to date the judicial appear-
ance of the standard nondelegation position to as early as 1813, in a
Marshall Court decision known as The Brig Aurora. 63
But the case
stands for no such proposition. A federal statute made the lifting of a
maritime embargo conditional on a presidential finding that other na-
tions were respecting American neutrality. One of the lawyers argued,
without supporting references, that by making the statute's operation
contingent on subsequent executive action Congress had unconstitu-
tionally delegated its legislative authority.4 The Court merely ob-
served that "we can see no sufficient reason, why the legislature
should not exercise its discretion [in providing for an embargo], either
expressly or conditionally, as their judgment should direct."6 Nothing
in The BrigAurora endorses the delegation metaphor; if anything, the
snippets from Madison and early legislators discussed above-is also post-ratification material.
To take Lawson's general objection seriously is to wipe out all of the affirmative founding-era
evidence that nondelegation proponents possess. (Note once again that generalities about the
separation of powers from Locke, Montesquieu, Madison, and other theorists don't count; those
generalities are equally consistent with the naive view, which holds that the exercise of statutory
grants of authority by executive officers is constitutionally permissible law-execution, not im-
permissible "legislation.") Moreover, on the standard textualist grounds to which Lawson's gen-
eral objection appeals, isolated quotations from the early period are far less weighty than actual
statutory enactments; the latter presumptively embody a judgment by the whole Congress, not
just by individuals, about the permissibility of delegation.
The specific objection cuts no ice either. Nondelegation proponents may chip away at the
early statutes as much as they please, adding ingenious epicycles to square the statutes with the
theory, but the cumulative impression these statutes create is that early Congresses just didn't
take constitutional objections to delegation very seriously. You can't beat something with noth-
ing; in the absence of any affirmative evidence for the nondelegation position, that conclusion
should be decisive for principled originalists.
62 Lisa Schultz Bressman, Schechter Poultry at the Millennium:A Delegation Doctrinefor
the Administrative State, 109 Yale L J 1399,1403 (2000).
63 11 US (7 Cranch) 382 (1813).
64 See id at 385-86.
65 Id at 388.

Court's terse dismissal of the claim suggests the absence of constitu-

tional limits on statutory grants to the executive.
The Court's next discussion of the nondelegation theory didn't
occur until 1825, well after the founding era, in the famous case of
Wayman v Southard." Only part of the case is of interest here; that
part involved the constitutionality of the Conformity Act, a statute
that authorized the federal courts to adopt rules to govern their own
processes, including the enforcement of judgments. The party contest-
ing the statute's constitutionality argued that, at least as applied to
matters outside the courthouse, such as the seizure of property in exe-
cution of judgments, the grant of rulemaking authority to the courts
amounted to "a delegation of legislative authority which Congress ...
has not the power to make."6' In a famous discussion, Marshall's opin-
ion for the Court proclaimed:
It will not be contended that Congress can delegate to the Courts,
or to any other tribunals, powers which are strictly and exclu-
sively legislative. But Congress may certainly delegate to others,
powers which the legislature may rightfully exercise itself... The
line has not been exactly drawn which separates those important
subjects, which must be entirely regulated by the legislature itsel,
from those of less interest, in which a general provision may be
made, and power given to those who are to act under such gen-
eral provisions to fill up the details.6'
Modern commentators have sometimes read the last sentence of this
passage as though Marshall were attempting a turgid explication of
the "intelligible principle" test, and other brief asides in the opinion
seem to support that view.69 But when read in the context of the whole
passage the last sentence isn't talking about the modem delegation
metaphor. It is instead claiming that the powers of Congress fall into
two categories: (1) "exclusive" powers and (2) powers that Congress
may choose either to exercise itself or to delegate to its agents. On this
account, the constitutional restriction isn't the modem nondelegation
doctrine or any of its variants. The constitutional restriction is a quite
different theory of nondelegable or exclusive powers, a theory that oc-
casionally surfaces in modem treatises and lawyers' arguments only to
66 23 US (10 Wheat) 1 (1825).

67 Id at 42.
68 Id at 42-43.
69 See, for example, Wayman, 23 US at 45 ("The power given to the Court ...is a power to
vary minor regulations, which are within the great outlines marked out by the legislature in di-
recting the execution."); id at 46 ("[T]he maker of the law may commit something to the discre-
tion of the other departments, and the precise boundary of this power is a subject of delicate and
difficult inquiry, into which a Court will not enter unnecessarily.").

be decisively rejected by the courts.7 In this light, the last quoted sen-
tence clearly doesn't say that the "line" courts must draw is, as the
modem doctrine would have it, a line between excessively discretion-
ary grants of authority and adequately cabined grants of authority.
Rather, Marshall's line runs between powers that may not be dele-
gated in any degree ("subjects, which must be entirely regulated by
the legislature itself'71) and those that may. Nor is there any hint that,
once a power has been sorted into the latter category, there exists
some independent intelligible principle requirement. If there were
such a separate requirement, of course, it would have been extremely
odd that the Court upheld the statute, which looks very like a blank-
check delegation of rulemaking authority to the federal courts.
The critical passage from Wayman v Southard,then, adopts a dif-
ferent theory than the one modem nondelegation proponents have
read into it. At most the opinion as a whole is ambiguous; the upshot
is that the pedigree of the modem delegation metaphor can't even be
pushed back as far as 1825. Indeed, the modem view doesn't clearly
surface in any court until state courts of the mid-century began hear-
ing nondelegation challenges to referenda schemes and local-option
laws.7 The doctrine's appearance in a Supreme Court opinion came as
late as 1892, when dictum in Field v Clark not only announced that
"Congress cannot delegate legislative power to the President," but
also cashed out that principle by suggesting, albeit in dictum, that
statutory grants of authority might "in [a] real sense, invest the Presi-
dent with the power of legislation" by leaving the president undue
"discretion in the premises.""
From the standpoint of the naive view of delegation, the objec-
tionable move here isn't the nondelegation principle, but the way in
which it is cashed out. The nalve view also holds that legislative power
may not be delegated to the president, but it holds that a statutory
grant of rulemaking authority never constitutes a delegation. From
that perspective, Field's reference to delegation "in [a] real sense'
gives away the game. It is an admission that the statutory grant was
not a delegation in the legal sense. After all, Congress didn't delegate
to the president its own statute-enacting power; rather, it exercised
precisely that power. The Field Court fell victim to an unexamined
70 See Part III.A for a discussion of nondelegable powers.

71 Wayman, 23 US at 43.
72 See Louis L. Jaffe, An Essay on Delegationof Legislative Power: , 47 Colum L Rev 561,
562-66 (1947) (discussing mid-nineteenth-century nondelegation claims in the state courts); Duff
and Whiteside, 14 Cornell L Q at 189-90 (cited in note 2) (discussing cases in Rhode Island and
Virginia).
73 143 Us 649 (1892).
74 Id at 692-93.
75 Id at 692 (emphasis added).

metaphor, a metaphor that continued forward into the twentieth cen-

tury and eventuated in the Court's adoption of the intelligible princi-
ple test in 1928, in JW. Hampton, Jr., & Co v United States.7
It's also true that none of these cases, including Field and Hamp-
ton, actually invalidated a statute on nondelegation grounds; the first
and last year in which the Court did so was 1935, so that, as Cass Sun-
stein notes, the nondelegation doctrine has had only one good year
and over two hundred bad ones. And even at the level of theory, or of
dictum, the nondelegation doctrine appears in the U.S. Reports only
by virtue of lawyers' arguments and dismissive judicial asides until the
end of the nineteenth century. The delegation metaphor, far from be-
ing a pillar of the structural constitution, looks like a marginal consti-
tutional theory that came and went in a few decades on either side of
the turn of the twentieth century.
It's worth stepping back from the minutiae to see the picture as a
whole. We have seen that the delegation metaphor lacks both an
originalist pedigree and a solid footing in early precedent and tradi-
tion. Indeed, treatises of the early to middle part of the nineteenth
century don't discuss it either; there's nothing about the delegation
metaphor in Story, Kent, or Tucker's Blackstone, apart from generali-
ties about the separation of powers (generalities that, as we have seen,
are consistent with either the na've view or the delegation meta-
phor).7 Based on our current knowledge, pending full treatment by
M
professional historians, the best conclusion is that the delegation

metaphor looks like a constitutionally marginal theory that flourished
only in the latter part of the nineteenth century, and then only until
the New Deal.
That conclusion makes the legal validity of the delegation meta-
phor an easy question. In light of the heavy constitutional burden that
76 276 US 394, 409 (1928) ("If Congress shall lay down by legislative act an intelligible
principle to which the person or body authorized to fix such rates is directed to conform, such
legislative action is not a forbidden delegation of legislative power.").
77 Sunstein, 67 U Chi L Rev at 322 (cited in note 2). This point refutes any Burkean claim
that the nondelegation doctrine is now an entrenched feature of our public law by virtue of a
consistent course of judicial decisions. But see David A. Strauss, Common Law Constitutional In-
terpretation, 63 U Chi L Rev 877, 892-93 (1996) (justifying, on Burkean grounds, a nontextualist
and nonoriginalist approach to constitutional law that treats accumulated precedent as constitu-
tive of constitutional meaning). Our tradition, or the Supreme Court's tradition, has been to (al-
most always) reject nondelegation challenges, while commentators repeatedly proclaim the
death of the nondelegation doctrine. That is hardly a sufficiently robust and settled tradition to
underwrite an implied restriction on Congress' exercise of its express textual powers.
78 See generally St. George Tucker, Blackstone's Commentaries with notes of reference to
the constitution and laws of the federal government of the United States and of the Commonwealth
of Virginia (Lawbook Exchange Reprint 1996); Joseph Story, Commentaries on the Constitution
of the United States (Carolina Academic Reprint 1987); James Kent, Commentaries on American
Law 1826-1830 (Little, Brown 12th ed 1896); William Rawle, A View of the Constitution of the
United States ofAmerica (PH Nicklen 2d ed 1829).

2002] Interringthe NondelegationDoctrine
rests upon nondelegation proponents to justify an important implied

restriction on congressional power, the striking absence of textual
support and founding-era evidence for the delegation metaphor is
constitutionally dispositive. The delegation metaphor can be justified,
if at all, only by functional arguments about the consequences, under
the conditions of modem government, of statutory grants of discre-
tionary authority to the executive. We turn to those arguments in
Part II.
3. The slippery slope.

A brief word about one of the most popular nondelegation ar-
guments: the slippery slope, down which the horribles parade. What of
the possibility that Congress might "vote all legislative power to the
President and adjourn sine die?"79 It wouldn't be quite that bad, of
course; the Constitution requires the Congress to assemble at least
once in every year,"' and under current constitutional assumptions any
such delegation would be revocable by a subsequent statute; Congress
may not bind the legislative authority of its successors.' The president
could, of course, veto the subsequent statute, so that two-thirds of both
houses of Congress would be necessary to revoke the delegation, but
that is true whether or not the statute contains an intelligible principle,
and indeed whether or not the statute delegates authority at all, so the
existence of presidential veto authority doesn't supply a well-tailored
justification for the nondelegation doctrine.
But it is true that the naYve view of delegation commits us to de-
fending the constitutionality of, for example, a statute granting the
president statutory authority to make rules on any subject within the
constitutional powers of Congress. If this is too fanciful, consider the
example beloved of nondelegation proponents: the Reichstag's 1933
decision to enact a statute authorizing Adolf Hitler to rule by decree.
How do we know it couldn't happen here? (And maybe it already did,
depending on how broad we take the National Industrial Recovery
79 Mistretta,488 US at 415 (Scalia dissenting).

80 See US Const Art I, § 4,cl 2.
81 See United States v Winstar Corp, 518 US 839, 873 (1996) ("[A statute] is not binding
upon any subsequent legislature."), quoting Manigault v Springs, 199 US 473, 487 (1905). We
have argued elsewhere that this assumption is erroneous. See generally Eric A. Posner and
Adrian Vermeule, Legislative Entrenchment.A Reappraisal,111 Yale L J 1665 (2002). Hence, we
do not rely on the argument from revocability to minimize the possible consequences of legisla-
tive delegations. Those who disagree with our argument about legislative entrenchment, how-
ever, should take into account that the revocability of delegatory legislation leaches much of the
starch from the sort of horrible hypotheticals commonly advanced to support a nondelegation
rule.
82 See Currie, The Constitution in the Supreme Court: The Second Century, 1888-1986 at
219 (cited in note 31) (comparing the 1933 legislation to the National Industrial Recovery Act).

Act, invalidated on nondelegation grounds in 1935,3 to have been.)

Shouldn't constitutional law hold some sort of nondelegation rule in
reserve against that eventuality?
All this strikes us as a flawed form of argument on at least four
grounds.
(1) It won't happen. Despite the breadth in the modem era of
congressional grants of statutory authority to the executive, a domi-
nant fact of modem government is that Congress and the president
are institutional rivals along many dimensions. Distrust of executive
agents frequently causes Congress to attempt to control the smallest
details of executive action, as it did in the hyper-detailed environ-
mental legislation of the 1960s and 1970s.M No serious person com-
pares Roosevelt to Hitler.
(2) If it did happen, it might not be bad. The legislatures of many
liberal democracies around the world have granted the executive
broad rulemaking powers, of varying scope, duration, and legal effect.8
Sometimes, of course, these practices or episodes represent executive
usurpation of legislative authority. Sometimes they represent a sensi-
ble social response to some crisis-war, economic chaos, or social un-
rest-best resolved by executive processes. Sometimes, less dramati-
cally, they represent a reasonable judgment by the legislature that the
opportunity costs of controlling policy formulation are too high, in
light of other things legislatures want to do. Even if Congress granted
the president broader rulemaking powers than it already has-
thereby sliding the rest of the way to the bottom of the slope-there is
little reason to suppose, ex ante, that the grant would represent legisla-
tive abdication to an engorged presidency, rather than a desirable re-
sponse to contemporary social needs. Much more could be said about
this essentially empirical and predictive question; Part II amplifies the
good reasons supporting delegation to executive agents. Suffice it to
say here that the current literature in comparative politics finds that
executive usurpation or legislative abdication is rarely the best expla-
nation for broad legislative grants of authority to the executive.-
(3) If it did happen, and it were bad, the nondelegation doctrine
couldn't prevent it anyway. If an Adolf Hitler came within striking dis-
tance of attaining power in the modem United States, it would pre-
sumably be unwise to rely on the nondelegation doctrine, or any other
83 See A.L.A. Schechter Poultry Corp v United States, 295 US 495, 541-42 (1935) (finding
the authority conferred under the Act to be an unconstitutional delegation of legislative power).
84 See, for example, The Clean Air Act, 42 USC § 7401 et seq (1994).
85 See generally John M. Carey & Matthew Soberg Shugart, eds,Executive DecreeAuthor-
ity (Cambridge 1998) (collecting comparative data).
86 See id ("[T]he conventional interpretation by which [executive] decree is regarded as
tantamount to executive usurpation of legislative authority has frequently been overstated").

esoteric legal principle, as the final barrier. Far better to rely on a

countervailing power with real muscle, like an opposing political party
or the army. Note that the Schechter Poultry decision is not a plausible
example of the Supreme Court invoking the nondelegation doctrine
to save the nation from a slide into executive tyranny. The National
Industrial Recovery Act had already lost political support by the time
the Court heard the nondelegation challenge; the Court's decision to
invalidate the statute amounted to little more than piling on. There's
littie reason to think that the Court would ever enforce the doctrine
against a nationwide majority convinced that a broad grant of statu-
tory authority to the executive was necessary to national survival.
(4) In general, developing rules with a view to improbable politi-
cal scenarios is poor constitutional design. No engineer builds a house
capable of resisting a meteor strike; the house would be a bunker un-
usable for its primary purpose. Tailoring constitutional rules to the
improbable case, rather than the usual case, has the same defects. Con-
stitutional law should instead be tailored to the run of cases that might
occur under plausible political circumstances; to tailor it to the most
lurid and feverish of hypotheticals is to distort its function. On both
methodological and political grounds, there's no reason to fear a slide
down the slippery slope, and no reason to twist the constitutional
structure out of shape merely to provide against an unlikely political
disaster.
II. DELEGATION IN POLITICAL AND ECONOMIC THEORY

The burden of Part I was showing that a nondelegation rule lacks
any moorings in formal constitutional sources. For some, that is con-
clusive; nothing more need be said about the consequences of delega-
tion or of a nondelegation rule. For others, however, constitutional ar-
gument properly includes consequentialist and functional considera-
tions; many nondelegation proponents appeal to those considerations
as well. In this Part we add a consequentialist analysis to the formal
argument of Part I. We argue here that there is no successful conse-
quentialist or functional justification for recognizing constitutional re-
strictions on statutory grants of authority to executive agents.
Initially, we need to clear up a terminological confusion created
by the literature's metaphoric use of the word "delegation." In debates
about the nondelegation doctrine, supporters and opponents alike
usually use the word "delegation" to include any transfer of authority
from Congress to executive agents. We have avoided this usage be-
cause under our constitutional argument a statutory grant of authority
87 See John Hart Ely, Democracy and Distrus" A Theory of Judicial Review 183 (Cam-
bridge 1980).

to executive agents is formally not a delegation of legislative power

under the Constitution. The executive's use of that authority is an in-
stance of executive power, not of legislative power. In this Part, how-
ever, we will adopt the usage of the literature, for to do otherwise
would require labored verbal manipulations. Thus, when we use the
word "delegation," we mean to include statutory grants of authority to
executive agents.
Critics of delegation argue that Congress delegates for nefarious
purposes-to make transfers to interest groups and to avoid responsi-
bility for difficult political decisions. These arguments appeal to wide-
spread conspiratorial intuitions about government, and so before ad-
dressing the arguments directly we should emphasize the peculiarity
of attacking this particular instrument of government power, whatever
one's views are about the motives of elected officials.
Delegation is ubiquitous in public and private life. The most fa-
miliar example is the employment relationship. When managers dele-
gate to employees, they expect that the employees will specialize in
some area for which the managers have responsibility. Delegation is
just as common in government: mayors, governors, judges, agency
heads, police captains, and countless other officials delegate power to
subordinates.
The ubiquity of delegation is due to the need for (a) authority
and (b) division of labor, in any complex institution, whether public or
private. All institutions must take direction from a person, or a small
group of people, but the leader of an institution cannot possibly per-
form all of its tasks directly. Instead, the leader or principal delegates
broad authority to agents. The principal sometimes controls agents by
giving them detailed instructions but more often by giving them a
vague goal- "maximize profits" or "sell lots of widgets"-and then
rewarding them on the basis of an ex post evaluation of the agent's
performance.
Although principals sometimes give bad instructions to agents, or
fail to discipline them properly, no one thinks that delegation has bad
effects in itself. No one argues that shareholders should not delegate;
people argue about whether existing compensation packages provide
the right kind of incentives for executives. No one argues that the
mayor should not delegate; they argue about whether the mayor has
delegated to the right people, too much or too little. The reason no
one makes these arguments, except in rare cases, is that the value of
delegation is too widely understood; it is simply an aspect of the divi-
sion of labor that underlies both market and nonmarket institutions.
Given the self-evident value of delegation, we should not be sur-
prised to find that the United States Congress delegates its powers-
using "delegate" in the conventional sense of enacting statutes that

grant agents legal authority. The critics of delegation need to explain

why delegation by Congress raises special functional objections, objec-
tions that cannot be applied generally to all congressional action, and
objections that cannot be applied to the countless routine delegations
that occur in any complex institution.
The critics of delegation have advanced numerous arguments, yet
they collapse into two classes. One class of argument takes social wel-
fare as its maximand: A Congress that can delegate will produce less
welfare than a Congress that cannot delegate. The other class of ar-
gument focuses on democratic values: A Congress that can delegate is
less democratic than a Congress that cannot delegate. We examine
these arguments below.
A. Welfare Arguments
The welfarist argument by the critics of delegation boils down to
the claim that social welfare would be greater if Congress made all the
specific policy choices rather than delegating that power to agencies.
This claim is like an argument that the owner of a corporation should
design the corporation's products rather than hiring engineers and
marketing experts. The owner knows that the agents might make spe-
cific choices that he would not make himself, but by rewarding the
agents on the basis of an ex post evaluation of performance, he en-
sures that they act roughly in his interest while at the same time ex-
ploiting their expertise and the other benefits of a division of labor.
What makes Congress different from this corporation? One pos-
sibility is that Congress's goals are objectionable. If the corporation
produces illegal products, we might want to prevent the owner from
delegating power. But we really want the corporation to cease produc-
tion. Similarly, if Congress's goals were wholly objectionable-if it
transferred wealth to interest groups and did nothing for the public-
then removing any tool at its disposal could only make the public bet-
ter off. Constitutional prohibition of delegation would be justified, but
so would constitutional interference with any congressional action, to
the extent that we would simply want judges to refuse to enforce all
statutes&
If we start, then, with the presumption that Congress does some
good, and thus should have some power, we can justify a nondelega-
tion doctrine only by explaining what is special about delegation, what
83 As Mashaw points out, see Mashaw, Greed at 144-45 (cited in note 2), this is the prob-
lem with Peter H. Aranson, Ernest Gellhorn, and Glen 0. Robinson, A Theory of Legislative
Delegation, 68 Cornell L Rev 1, 7 (1975) (proposing "a renewed nondelegation doctrine" as a
tool to "deprive the legislature of its ability to shift responsibility and to create lotteries in pri-
vate benefits through regulation").

makes it especially bad? There is only one basic proposal on the table,
though many variations, and it is this: When Congress delegates, it
conceals political transfers from the public, making it more difficult
for the public to interfere with these transfers. How does it do this?
Through delegation Congress authorizes agencies to make the trans-
fers for it. Courts and other institutions cannot interfere with the
agencies' transfers because the agencies are given vague grants of au-
thority. Citizens have no power to monitor the agencies' transfers be-
cause agencies' behavior is more secretive than Congress's, nor can
they punish agencies because the agencies are insulated from the po-
litical process. Agency heads do not stand for reelection; agency staffs
cannot be disciplined.
This argument assumes, implausibly, that Congress wants to give
away its power to other institutions. If, as is more likely, Congress
wants to exert its power through the agencies, and retains power to
discipline agencies that do not make the right transfers to the right in-
terest groups-those that have influence on Congress-then the pub-
lic can ensure that agencies act in the public interest to the same ex-
tent that it can ensure that Congress serves the public interest when
Congress passes nondelegatory statutes. If citizens have the capacity
to sanction politicians who make bad policy in statutes, they should
also have the capacity to sanction politicians who fail to punish agen-
cies that make bad policy, or who delegate authority to such agencies
in the first place.8" Imagine that citizens obtain all their information
from the media, and journalists have only enough time and expertise
to monitor congressional debates, and not enough to monitor agency
decisionmaking. When Congress initially delegates authority to an
agency, the media should report to the public that Congress has cre-
ated a mechanism that will make transfers to interest groups. Clearly,
such a statute is bad-just as bad as a statute that directly makes a
transfer to interest groups-and the public should punish Congress for
delegating as much as it punishes Congress for enacting the direct
transfer.
This argument remains valid even if we accept the assumption
that Congress really does not want much authority because then it has
to make difficult decisions about to whom it should make transfers,
when it would rather accumulate political goodwill by engaging in
constituent service.' Thus, Congress delegates authority to agencies
89 Mashaw makes essentially this argument. See Mashaw, Greed at 146-47 (cited in note 2).
90 See Farber and Frickey, Law and Public Choice at 81-82 (cited in note 2) (emphasizing
that monitoring technology is endogenous, and should improve as agencies acquire more power).
91 See Cynthia R. Farina, Statutory Interpretationand the Balance of Power in the Adminis-
trative State, 89 Colum L Rev 452,497 & n 204 (1989); Aranson, Gellhom, and Robinson, 68 Cor-
nell L Rev at 33 (cited in note 88).

without monitoring them, in effect holding a "regulatory lottery," in

the words of Aranson and his coauthors.9 The problem with this the-
ory is that interest groups and constituents who pick the wrong ticket
in the regulatory lottery will lobby Congress to reverse the agency's
decisions, and indeed even to retract the delegation. Those who bene-
fit from the agency decisions will lobby Congress to maintain the
status quo.93 Congress will have to answer the hard question of
whether to interfere with its agency, and so it cannot divest itself of
the responsibility for making difficult decisions. Indeed, both the win-
ners and the losers will realize ex ante that the delegation might bene-
fit or harm them, and so they will lobby ex ante about the delegation
as vigorously as they would about any other kind of legislation.
Critics of delegation argue that the evidence shows that delega-
tion results in transfers to interest groups. In fact, the evidence shows
that interest groups influence both nondelegating legislation produced
by Congress and regulation promulgated by agencies." The critics of
delegation need to show that regulations benefit interest groups more
than nondelegating legislation does. They have not provided such evi-
dence.9
Another version of the welfarist argument stresses the virtues of
political competition. Robert Cooter argues that "interbranch delega-
tion can concentrate state powers," resulting in "political cartels."6 The
analogy to market competition is insufficiently developed, however.
Economics frowns on cartelization but not on cooperation. If the rele-
vant "producer" in the "political market" is the politician, then the
nondelegation doctrine arbitrarily bars an important form of coopera-
tion among members of the legislative and executive branches. Cooter
seems to have something else in mind, but we do not know what.
When the legislature delegates power to an agency, it does give some
authority to the executive, but this is nothing like firms organizing a
92 Aranson, Gellhorn, and Robinson, 68 Cornell L Rev at 61 (cited in note 88).

93 This happens time and again: witness the response to OSHA's ergonomics regulation.
See, for example, Steve Lohr, Administration Balks at New Job Standards on Repetitive Strain,
NY Tunes D1 (June 12,1995).
94 See, for example, David Schoenbrod, Power without Responsibility: How Congress
Abuses the People through Delegation4-9 (Yale 1993) (discussing the influence of Sunkist on the
Department of Agriculture's regulation of the navel orange market). See generally George J.
Stigler, The Theory of Economic Regulation in George J. Stigler, ed, Chicago Studies in Political
Economy 209,214-17 (Chicago 1988) (discussing interest group influence on legislation).
95 Indeed, the evidence showing that regulation reflects interest group pressure is mixed.
See Steven P. Croley, Theories of Regulation:Incorporatingthe Administrative Process,98 Colum
L Rev 1, 52-56 (1998) (finding a general lack of specific examples and empirical evidence of leg-
islature and agency capture by interest groups). But we do not need to take a position in this de-
bate; our more limited point is that there is no evidence that delegating legislation produces
worse outcomes than nondelegating legislation does.
96 Robert D. Cooter, The Strategic Constitution89 (Princeton 2000).

cartel. A closer analogy to cartelization is the grouping together of

politicians into a party. If this practice is tolerable from the perspec-
tive of political competition, then surely delegation is. The concept of
political competition might play an important role in a theory of de-
mocracy, but it is too amorphous to provide guidance for evaluating
the nondelegation doctrine.
B. Democratic Arguments
Some critics of delegation argue that delegation violates democ-
ratic values. Their main argument focuses on accountability. Suppose
that Congress delegates certain powers to an agency. Those who want
to influence policy will make arguments to the agency, not to Con-
gress. Those who are disappointed by the agency's decisions will ap-
peal to the agency, not to Congress. Members of Congress are thus not
accountable for political outcomes under their responsibility. But in a
well-functioning democracy those who are ultimately responsible for
it. '
policy should be directly accountable to those who are affected by
The problem with this argument is that Congress is accountable
when it delegates power-it is accountable for its decision to delegate
power to the agency. If the agency performs its function poorly, citi-
zens will hold Congress responsible for the poor design of the agency,
or for giving it too much power or not enough, or for giving it too
much money or not enough, or for confirming bad appointments, or
for creating the agency in the first place. And, as noted above, Con-
gress is accountable not only in this derivative sense. Congress retains
the power to interfere when agencies make bad decisions; indeed, it
does frequently."
David Schoenbrod's variant of this argument emphasizes the
ability of Congress to claim victory over some difficult problem (for
example, pollution) by enacting a vague statute that seems to tackle
the problem (the Clean Air Act) but in fact delegates authority to an
agency that will have to make the difficult compromises (between
clean air and economic growth)." But as Mashaw points out, Congress
can engage in happy talk about nondelegating statutes as well.'"' Ei-
ther citizens and the media believe it or not; there is nothing special
about delegation per se. If members of Congress can be taken to task
at the next election for saying that welfare reductions will help poor
97 See Theodore J. Lowi, Two Roads to Serfdom: Liberalism, Conservatism, andAdministra-

tive Power,36 Am U L Rev 295,296-98 (1987) (arguing that delegation undermines political ac-
countability and the regulation of power, which were the Framers' main concerns); Ely, Democ-
racy at 131-34 (cited in note 87).
98 See notes 109-111.
99 See Schoenbrod, Power Without Responsibility90-93 (cited in note 94).
100See Mashaw, Greed at 147 (cited in note 2).

people, then they can be taken to task for saying that the Consumer
Product Safety Commission will help small businesses.
Critics of delegation might argue that this response makes unre-
alistic assumptions about the psychology of the electorate. Anecdote
and intuition tell us that a member of Congress is more vulnerable to
criticism for voting in favor of a law that, say, shuts down a local pol-
luter who employs many constituents, than for voting for a law that
authorizes an agency to shut down polluters, or for not voting for a
law that stops an agency that already has that authority. But this ar-
gument overlooks the price that the member of Congress pays for
delegating power. The member of Congress receives less criticism be-
cause he has less control over the outcome. He shares the criticism
with the president who appointed the agency officials, and the criti-
cism is diluted to the extent that the agency otherwise does a good
job.
Accountability is not lost through delegation, then; it is trans-
formed. Congress is accountable for the performance of agencies gen-
erally, and people properly evaluate the agencies' accomplishments as
well as failures when deciding whether to hold members responsible
for authorizing the agency, or for failing to curtail its power, fix its mis-
takes, or eliminate it altogether. In a similar way, corporate managers
are held responsible for the general performance of employees, not
for a particular error that an employee makes, unless the error is fore-
seeable and egregious. Like the manager, Congress monitors its sub-
ordinates as best it can, and tries to design rewards and penalties that
give them the right incentives.' 1
It should also be noted that the nondelegation doctrine restricts
delegation to executive agencies but not to other agencies within the
legislative branch. Epstein and O'Halloran argue that if Congress
could not delegate broad powers to agencies, it would delegate more
power to congressional committees and staff members. ° Whether this
substitution would occur, and would not reduce accountability if it did,
are difficult questions, but ones that the critics of delegation have not
adequately addressed.
Manning ties the nondelegation doctrine to the Constitution by
emphasizing the values underlying the bicameralism and presentment
requirements of Article I, § 7:
101 Also emphasized by Spence and Cross, 89 Geo L J at 133 (cited in note 2); Epstein and
O'Halloran, 20 Cardozo L Rev at 958-60 (cited in note 2) (purporting to provide evidence);
Mashaw, Greed at 139 (cited in note 2); Roderick D. Kiewiet and Mathew D. McCubbins, The
Logic of Delegation:CongressionalParties and the AppropriationsProcess 33-34, 232-33 (Chi-
cago 1991).
102 See Epstein and O'Halloran, 20 Cardozo L Rev at 961-62 (cited in note 2).

1750 The University of ChicagoLaw Review [69:1721
By dividing legislative power among three relatively independent

entities, that intricate and cumbersome process serves several
crucial constitutional interests: it makes it more difficult for fac-
tions (or, as we would put it, "interest groups") to capture the
legislative process for private advantage, it promotes caution and
restrains momentary passions, it gives special protection to resi-
dents of small states through the states' equal representation in
the Senate, and it generally creates a bias in favor of filtering
' out
bad laws by raising the decision costs of passing any law.
The nondelegation doctrine prevents Congress from recombining
these powers in an agency that would enjoy de facto legislative au-
thority unencumbered by internal divisions or by the participation of
other institutions.'
Manning's argument nicely undercuts Schoenbrod's by emphasiz-
ing the limits on congressional accountability built into the Constitu-
tion. People with valid complaints about existing law can only with
difficulty obtain a response from Congress. Any member of Congress
can persuasively blame inaction on the "intricate and cumbersome
process" through which legislation, under the Constitution, must pass.
By contrast, people with valid complaints about existing regulations
can obtain a response by appealing to the agency, which cannot blame
the Constitution if it decides not to act. 5When Manning observes that
the bicameralism and presentment requirements serve constitutional
values, he means values other than accountability, which is just one
among many.
But Manning does not explain how delegation conflicts with
these other values. (i) If bicameralism and presentment reduce the in-
fluence of interest groups, enabling Congress to serve the public inter-
est, then Congress will have no incentive to create agencies that are
themselves vulnerable to these same interest groups. (ii) If bicameral-
ism and presentment prevent Congress from being carried away by
momentary passions, then Congress will (calmly) burden agencies
with procedural requirements that prevent the agencies from being
carried away by momentary passions. (iii) Residents of small states
can be expected to exercise their political power by blocking delega-
tions that will disproportionately harm them or by insisting that the
authorizing statutes enlarge the agencies' ability to do good, and limit
103 John F. Manning, The Nondelegation Doctrine as a Canon of Avoidance, 2000 Sup Ct
Rev 223,239-40 (footnotes omitted).
104 Manning reports rather than makes these arguments. He is interested in defendinj the
doctrine's implications for statutory interpretation, not the doctrine itsel We discuss this argu-
ment in Part III.C.
105 See Schuck, 20 Cardozo L Rev at 782-83 (cited in note 2).

their ability to do harm, in small states.n (iv) Bad delegations will be

filtered out because of the cost of enacting the authorizing statute.
All of the constitutional values mentioned by Manning are for-
mally protected because the delegatory statute itself must go through
bicameralism and presentment. The formal protection of these values
puts the burden on the critics to show that as an empirical matter the
values are less fully protected when delegation occurs. We have al-
ready mentioned the lack of evidence that interest groups have
greater power to influence agencies than they have to influence Con-
gress; there is also no evidence that agencies, more than Congress, are
vulnerable to momentary passions, indifferent to the interests of small
states, and more likely to implement bad policy.
The fourth value-the filtering out of bad laws-demands further
comment, as critics of delegation frequently appeal to it. They over-
look the filtering out of bad delegatory statutes and argue that delega-
tion results in bad regulations that would, if they were instead legisla-
tion, be blocked by the bicameralism and presentment requirements.
A few comments about this argument are in order.
First, even if the Framers believed that the bicameralism and pre-
sentment requirements would block bad legislation by raising decision
costs, there is no reason to think that the decision cost theory is sound.
If Congress passes good laws and bad laws, increasing the decision
cost of legislation would interfere with both kinds of laws, not just bad
laws. Indeed, if members of Congress believe that transfers to sup-
porters are the priority, increasing decision costs will interfere only
with low-priority public interest legislation and not with high-priority
interest group legislation. On this view, the bicameralism and pre-
sentment requirements should be regretted rather than celebrated,
and there is no reason for the Court to extend their reach to delega-
tion. Instead, delegation should be welcomed as a useful device for
evading formal constitutional requirements that serve doubtful pur-
poses.
Second, even if the decision cost theory were plausible, it would
not follow that delegations should be banned. To reproduce at the
agency level the decision costs that encumber decisionmaking at the
political level, the Court could randomly strike down regulations, forc-
ing agencies to repeat the process of promulgation. Of course, this
practice would be ridiculous, but it would be more faithful to the deci-
sion cost theory than wholesale prohibition of delegations; its silliness
106 For examples of the influence of (mostly small) western states on authorizing statutes,
see George Cameron Coggins and Doris K. Nagel, "NothingBeside Remains". The Legal Legacy
of James G.Watt's Tenure as Secretaryof the Interior on FederalLand Law and Policy, 17 BC En-
vir Aff L Rev 473,492-93 (1990).

is a reflection of the logic of the decision cost theory, not our criticisms
of it.
The decision cost argument might be cast in less instrumental
terms. The critic of delegation might argue that bicameralism and pre-
sentment encourage Congress to deliberate about policy, and if Con-
gress can delegate easily, then deliberative values are lost. It is democ-
ratically preferable for Congress to deliberate about policy rather
than for the head of an agency to deliberate about policy, even if they
would in the end choose the same policy. But a step up to the next
level of generality reveals the defect in this argument. The scale of the
policy choices that Congress must make is itself an appropriate topic
for congressional deliberation. If Congress concludes that in light of
its limited resources it should deliberate more about the general struc-
ture of government, including the delegation of powers, and less about
policy minutiae, then judicial interference with this choice can hardly
be thought to promote deliberation.
However the argument from democracy is understood, it cannot
be used to justify the nondelegation doctrine in the absence of evi-
dence that delegation interferes with accountability and other democ-
ratic values, and that this interference is not justified by other consid-
erations. The critics of delegation load the dice against Congress by
arguing that the absence of constant supervision of agencies shows
that Congress is unaccountable,"' when the absence of constant super-
vision is the intended consequence of delegation. Constant interfer-
ence with an agency would be evidence of delegatory failure."' Be-
sides, Congress does enact laws that reverse the decisions of agen-
cies,"9 weaken their powers, 0 and even abolish whole agencies."' And
Congress often takes care to draft statutes to confine discretion, and
give interest groups the ability to alert Congress when the agency goes
astray. 2 One cannot in the abstract say whether the level of monitor-
107 See Schoenbrod, Power without Responsibilityat 99-105 (cited in note 94).
108 See Barry R. weingast and Mark J. Moran, Bureaucratic Discretion or Congressional
Control?:Regulatory Policymakingby the FederalTrade Commission, 91 J Polit Econ 765,768-70
(1983).
109 An example is Congress's reversal of the FCC's low-power FM radio rules. For a general
discussion, see Stewart Benjamin, Douglas Lichtman, and Howard Shelanski, Telecommunica-
tions Law and Policy 325-32 (Carolina 2001).
110 See, for example, James Q. Wilson, Bureaucracy:What Government Agencies Do and
Why They Do It 242-43 (Basic Books 1989) (discussing examples); Terry M. Moe, The Politicsof
BureaucraticStructure, in John E. Chubb and Paul E. Peterson, eds, Can the Government Gov-
ern? 267, 289-97 (Brookings 1989) (chronicling the crippling of the Consumer Product Safety
Commission through reauthorizations in 1975,1978, and 1981).
111See, for example, Interstate Commerce Commission Termination Act of 1995, Pub L No
104-88, 109 Stat 803 (1995); Civil Aeronautics Board Sunset Act of 1984, Pub L No 90-443, 90
Stat 1704 (1984) (terminating CAB).
112 See Epstein and O'Halloran, 20 Cardozo L Rev at 954-60, in 22-37 (cited in note 2);
Kiewiet and McCubbins, Logic of Delegation at 206-10 (cited in note 101) (discussing congres-

ing and punishment that we observe shows that Congress remains ac-
countable, but this just means that the nondelegation proponents have
failed to carry their burden of proof.
To show that delegation has reduced accountability, one must
provide a more particular kind of evidence, namely, that the agency
regulates against the interests of Congress and the public or the inter-
est groups that have influence with Congress, and that Congress does
not attempt to discipline the agency. And that is only the first step. To
show that this lack of accountability is due to the delegation rather
than to the nature of Congress itself, one must show that when Con-
gress does not delegate, the rules it creates reflect more closely the de-
sires of the public or of interest groups. We have not found
11 3 the kind of
systematic study that could shed light on these questions.
C. Is Delegation Special?
The welfarist and democratic arguments share a flaw, namely, that
they cannot make delegation special. Congress can use its lawmaking
powers for good or evil: to single out one of these powers for restric-
tion one needs a theory that explains why this power is subject to
greater abuse than others. Critics of delegation have made their case
by pointing to the potential ill effects of delegation, but they have
shown only that delegation is a powerful tool, and so its effects-
whether good or bad-can be substantial. But we can say the same
thing about Congress's power to tax. If one focuses only on the bad
uses of the taxation power, one would be quite impressed, but no one
argues that Congress should not have the power to tax. Both taxation
and delegation can be put to good and bad uses; what makes delega-
tion especially bad?
Someone might yet come up with an economic theory that ex-
plains why delegation should be restricted, but we are pessimistic. A
theory that envisions the political process as interest group warfare
will not be able to explain why delegation is worse than any other tool
at Congress's disposal. A more subtle theory that focuses on the dif-
ferential costs of monitoring political actors"' will have trouble ex-
plaining why those who monitor political actors face greater difficul-
sional oversight); Mathew D. McCubbins and Talbot Page, A Theory of CongressionalDelega-

tion, in Mathew D. McCubbins and Terry Sullivan, eds, Congress:Structure and Policy 402 (Cam-
bridge 1987).
113 Epstein and O'Halloran's study, 20 Cardozo L Rev at 962 (cited in note 2), comes closest
to this, but shows the opposite: that the amount of delegation appears to reflect legitimate poli-
cymaking concerns such as the similarity of the preferences of Congress and the agency. See also
Kiewiet and McCubbins, Logic of Delegationat 235-37 (cited in note 101).
114 Farber and Frickey, Law and Public Choice at 81-83 (cited in note 2), seem to lean in
this direction.

17/54 The University of Chicago Law Review [69:1721
ties evaluating statutes that delegate, and the regulations they author-
ize, than statutes that do not delegate; and why these additional moni-
toring costs, if they exist, are likely to exceed the gains from institu-
tional division of labor.
The problem with democratic critiques of delegation is that de-
mocratic theories are usually indeterminate at the institutional level."'
A flourishing democracy might be direct or representative or parlia-
mentary; it might involve heavy reliance on committees in its repre-
sentative institution; it might rely on strong parties; it might rely on
appointed judges or elected judges, with or without tenure; it might be
confederated or not; it might have strong libel laws or strong speech
protections; and it might rely heavily on autonomous agencies or do
its work through judicial enforcement of private rights of action. In
their preoccupation with delegation among all the other devices used
to make policy, the critics of delegation treat the nondelegation doc-
trine as a fetish that would ward off all the evils of representative de-
mocracy. But arguments about democratic accountability can be used
to criticize all of the other devices and institutions as well. Beneath
their masks, the critics of delegation are direct democrats, and they
should aim their arguments at representative democracy, not at dele-
gation, which is but a small part of it. In doing so, however, they would
make clear that they are arguing against the Constitution-which is
hardly a charter for direct democracy-not from it.
III. EXTENSIONS AND APPLICATIONS

In this Part we apply the preceding analysis to a range of doc-
trinal settings that are usually thought to pose special, and especially
acute, delegation problems. Our view, however, entails that these set-
tings aren't special at all. To the extent that these legal doctrines are
rooted in nondelegation concerns, they are flawed and should be abol-
ished; anything valuable in them turns out to be based on legal ideas
independent of constitutional restrictions on delegation.
A. Nondelegable Powers
We have already mentioned the theory of nondelegable powers
articulated in Wayman v Southard."6 Although consistently rejected by
modern courts,"7 it continues to garner an occasional endorsement by
115 See Dan M. Kahan, Democracy Schmemocracy, 20 Cardozo L Rev 795,797-800 (1999)
(claiming that "the concept of democracy, by itself; doesn't uniquely determine the structure of
government institutions").
116 23 US 1 (1825). See text accompanying notes 66-76.
117 See, for example, Skinner v Mid-America Pipeline Co, 490 US 212,222-23 (1989) (reject-
ing claim that the taxing power is intrinsically nondelegable); Synar v United States, 626 F Supp

commentators. "' Surely, the reasoning runs, Congress may not by stat-
ute create a federal court or agency with delegated authority to exe-
cute the House's power of impeachment, or the Senate's power to
convict on a bill of impeachment, to approve treaties, or to confirm of-
ficers. Does our rejection of the delegation metaphor require accept-
ing those hypotheticals?
No, it doesn't. The nalve view of delegation holds that a statutory
grant of authority is never unconstitutional on the ground that it con-
fers "legislative" power on the executive, although it may be unconsti-
tutional on other grounds. Those other grounds might include, say, an
attempt to grant the executive the power to regulate intrastate non-
commercial activities, or the power to violate the First Amendment; in
both cases Congress could not itself enact the relevant rule, so it may
not confer that power upon its agents either. Congress may not confer
a power that it doesn't possess in the first place. So Congress couldn't,
for example, transfer to executive agents a power that the Constitu-
tion vests in some other institution, such as the Supreme Court. All
this is common ground.
But a statute granting the executive the House's authority to im-
peach, or the Senate's authority to approve treaties, would be legally
identical to a statute granting the executive the Supreme Court's
power to decide cases. The reason is that Congress may exercise or
confer by statute only the authority that Congressitself possesses; and
the treaty approval power is held by the Senate as a separate institu-
tion, not by the Congress. Precedent from both the Supreme Court 9
and Congress itself has always recognized that distinction. Consider
that Congress has always denied that it possesses constitutional au-
thority to regulate, by binding statute, the internal rules and regula-
tions of its respective houses, precisely because the Constitution
grants that power to each house separately.m Nor, of course, could the
separate houses separately transfer their powers to the executive
branch, for the houses acting alone lack the power to enact the statute
necessary to trigger the president's law-execution authority. Recall
that the executive must trace its authority to a constitutional or statu-
1374, 1385-86 (DC Cir 1986) (rejecting claim that the appropriations power is inherently non-
delegable).
118 See, for example, Tribe, 1 American ConstitutionalLaw at 982 (cited in note 17) (claim-
ing that certain legislative powers are nondelegable).
119 See Chadha,462 US at 955-56:
[When the Framers] sought to confer special powers on one House, independent of the
other House, or of the President, they did so in explicit, unambiguous terms. These carefully
defined exceptions from presentment and bicameralism underscore the difference between
the legislative functions of Congress and other unilateral but important and binding one-
House acts provided for in the Constitution.
120 See Posner and Vermeule, 111 Yale L J at 1665 (cited in note 81) (collecting references).

tory grant;M a grant pursuant to an internal rule of one house doesn't

count.
The casual elision of this constitutionally critical distinction, be-
tween Congress and its separate houses, is all that explains the intui-
tive appeal of the hypotheticals about impeachment and treaty ap-
proval. Where Congress acting by statute grants the executive rule-
making authority over a subject constitutionally granted to the whole
Congress as such-the power to regulate interstate commerce, for ex-
ample-it's hard to construct any hypothetical that seems equally ob-
jectionable, and the na've view holds that the nondelegability of legis-
lative power never bars such statutes. Certainly the courts have never
seen any problem; in modern times they have refused to carry out the
enterprise, initiated by Wayman, of constructing a "two-tiered'"" the-
ory of delegation by drawing distinctions among Congress's enumer-
ated powers. In its latest dismissal of Wayman's theory of nondelega-
ble powers, the Court held that even the taxing power could be con-
ferred upon federal agencies, subject only to the usual intelligible prin-
ciple test."'
Similar reasoning disposes of other nasty hypotheticals. We have
said that, on the na'ive view, the constitutional prohibition of the dele-
gation of legislative powers simply means that individual members of
Congress may not cede their federal legislative offices to other per-
sons. We have also said that law-execution pursuant to a statutory
grant of authority is always just constitutionally valid law-execution; it
never amounts to an exercise of "legislative power" in the constitu-
tional sense. Could Congress, then, enact a statute granting executive
officers the authority to vote on bills (an authority that would just be
ordinary law-execution), and thereby "make legislators" in Locke's
sense? No, because Congress doesn't possess that power in the first
place, and Congress may not confer what it doesn't have. The power to
vote on bills is possessed by individual members of Congress, not by
the Congress as such; and for the reasons previously discussed the in-
dividual members may no more transfer their powers to the whole
Congress than they may transfer them to anyone else. The mistake in
the hypothetical is that it confuses the necessary conditions for the
constitutional validity of statutory grants with the sufficient conditions
for their validity. To say that statutory grants of law-execution author-
ity never constitute a delegation of legislative power is not to say that
any statutory grant of law-execution authority is constitutional.
121 See Youngstown Sheet & Tube Co v Sawyer, 343 US 579, 585 (1952) ("The President's
power, if any, to issue the order must stem either from an act of Congress of from the Constitu-
tion itseW").
122 Skinner,490 US at 220.
123 See id at 224.

B. Delegation to Nonexecutive Agents

This analysis also clarifies another famous constitutional problem,
that of delegation to agents other than the president or the executive
branch. The classic example involves delegation to private parties. In
A.L.A. Schechter Poultry Corp v United States,'24 the Court invalidated
the National Industrial Recovery Act in part because it effectively
granted lawmaking power to industry cartels; and in Carter v Carter
Coal,5 a plurality struck down a statute that did so de jure, not merely
de facto. Since 1936 the Court has sustained broad delegation to pri-
vate parties such as trade associations and producers' cooperatives"
But decisions in other constitutional areas have often incorporated
delegation concerns with greater or lesser degrees of explicitness, as
when the Court held that state replevin statutes posed increased due
process concerns because they delegated law enforcement authority
to private parties.1' And the category of nonexecutive agents sweeps
well beyond private parties; it includes states, international bodies, and
other delegates who exercise authority pursuant to federal statute or
treaty, but who are not "private" actors in any useful sense of that
term. Examples are the state law enforcement officers charged with
administering the Brady Act before the Supreme Court invalidated it
on federalism grounds,"' and the international body that enjoys treaty
authority to search civilian sites within the United States for evidence
of illegal manufacture of chemical weapons.' 2
In our view, there is nothing special about such cases; neither
nondelegation proponents nor nondelegation opponents should think
them especially troublesome. The factor alleged to make such cases
distinctive is the identity of the delegate. But the delegation inquiry,
either in the narrow naYve version or the broader nondelegation
metaphor, asks what Congress has given away, not who has received
the gift. The delegation inquiry focuses on the abdication of Congress,
the delegator, rather than on the nature of the delegate. So nothing in
these cases changes the usual debate.
This is not to say that the identity of the delegate is irrelevant,
only that the relevant concerns aren't about the delegation of legisla-
124 295 US 495 (1935).

125298 US 238 (1936).
126 See, for example, United States v Rock Royal Co-Operative Inc, 307 US 533, 574-81
(1939) (upholding a delegation of regulatory authority to producer cooperatives).
127See Fuentes v Shevin, 407 US 67, 93 (1972) ("The statutes, moreover, abdicate effective
state control over state power. Private parties, serving their own private advantage, may unilater-
ally invoke state power to replevy goods from another.").
128 See Printz v United States, 521 US 898,925-28 (1997).
129 See Chemical Weapons Convention Implementation Act of 1998, Pub L No 105-277,112
Stat 2681, codified at 22 USC §§ 6701-71 (2000).

tive powers. Rather they are about the allocation among potential
delegates of other powers, notably the executive power and the power
to appoint officers of the United States. Consider, for example, the
question whether Congress may authorize state officials to enforce
federal statutes. In Printz v United States'" the Court, through Justice
Scalia, suggested that such authorization would violate Article II's
Vesting Clause by transferring law-execution authority to someone
other than a federal executive officer subject to presidential control.'n
The same theory-the "unitary executive" theory-has been urged,
with little success to date, against the congressional creation of inde-
pendent agencies staffed by federal officials executing statutory au-
thority free from plenary presidential control." Note that in all of
these settings, the predicate for the unitary executive claim is precisely
that the relevant delegates are exercising executive power rather than
legislative power-in other words, that any nondelegation challenge
has already been rejected. The question about the identity of the dele-
gate is analytically independent of the question about delegation.
A different legal challenge to nonexecutive delegations involves
the Appointments Clause of Article II, which provides that all "offi-
cers of the United States" must be appointed by one of several proce-
dural mechanisms. Where the delegate exercises "significant author-
M
ity" pursuant to federal statute,'5 yet has not been so appointed, the
delegate may be described as an invalidly appointed federal officer.
An example involves the previously described chemical weapons
treaty that authorizes members of international bodies to conduct
domestic searches. John Yoo argues persuasively that the best consti-
tutional objection to the treaty is that the international officials exer-
cise federal law-execution authority without having been validly ap-
130 521 US 898 (1997).

131US Const Art II, § 1, cl 1 ("The executive Power shall be vested in a President of the
United States of America.").
132 See Printz, 521 US at 922. The case is better known for the Court's analytically distinct
holding that Congress's attempt not merely to authorize state enforcement, but to compel it, ef-
fected an invalid "commandeering" of state authority. Id at 931-33.
133 See Humphrey's Executor v United States, 295 US 602, 629 (1935) ("The authority of
Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in dis-
charge of their duties independently of executive control cannot well be doubted"); Steven G.
Calabresi and Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 Yale L J
541, 549 (1994) (arguing that "the unitary Executive thesis holistically explains how the United
States Constitution allocates the power of law execution and administration to the President
alone"). But see Lawrence Lessig and Cass R. Sunstein, The Presidentand the Administration, 94
Colum L Rev 1, 4 (1994) ("Any faithful reader of history must conclude that the unitary execu-
tive ...is just myth.").
134 US Const Art II, § 2,cl 2.
135 Buckley v Valeo, 424 US 1, 125-26 (1976) (holding any presidential appointee "exercis-
ing significant authority" to be an "Officer of the United States" for Article II purposes).

pointed.' Whether or not the Appointments Clause objection suc-

ceeds, the key point is that it is orthogonal to questions about delega-
tion. The predicate for the objection is precisely that the delegate ex-
ercises significant authority pursuant to an otherwise valid statutory
delegation.
C. Delegation and Statutory Interpretation

Several scholars have argued that courts should discourage dele-
gation by narrowly interpreting statutes that make broad delega-
tions'3 This indeed has been the trend in the Supreme Court. ' 3 The
use of a canon of avoidance to limit delegations reflects the belief that
broad delegations are constitutionally troubling, but that courts can
only with difficulty engage in principled constitutional review.'39 On
our view, however, delegation does not violate the Constitution or
threaten any constitutional value. Accordingly, using statutory inter-
pretation to limit delegations can be justified only on the basis of an
interpretive theory that licenses judges to develop clear statement
rules in the absence of any underlying constitutional question.
Manning has argued that using the canon of avoidance to limit
delegations is constitutionally objectionable. Indeed, he finds the
canon of avoidance more objectionable than the nondelegation doc-
trine, about which he expresses no opinion. If, he says, delegation un-
dermines important constitutional values-by allowing policymaking
to escape the bicameralism and presentment requirements of Article
I, § 7-then the Supreme Court should discourage delegations by
striking down legislation rather than by interpreting legislation nar-
rowly. Indeed, "artificially narrowing a statute to avoid nondelegation
concerns is at best self-defeating. 'I' The reason is that when courts
"interpret" statutes narrowly in order to avoid delegation concerns,
they are really rewriting statutes, and thus engaging in their own legis-
lation. This legislation violates the Article I, § 7 requirements, and
136 See John C. Yoo, The New Sovereignty and the Old Constitution:The Chemical Weapons
Convention and the Appointments Clause, 15 Const Comment 87,116-30 (1998).
137 See, for example, Sunstein, 67 U Chi L Rev at 317-18 (cited in note 2) (suggesting that
the nondelegation doctrine is flawed, but the aims of the doctrine might nonetheless be pursued
through appropriate canons of statutory interpretation).
138 See, for example, FDA v Brown & Williamson Tobacco Corp, 529 US 120,161 (2000) (us-
ing a nondelegation canon to hold that the Food and Drug Administration lacks authority to
regulate tobacco products); MCI Telecommunications Corp v American Telephone & Telegraph
Co, 512 US 218,234 (1994) (using a nondelegation canon to hold that the Federal Communica-
tions Commission's authority to "modify" rate-filing requirements does not permit it to make
"basic and fundamental" changes to those requirements).
139 Sunstein, 67 U Chi L Rev at 327 (cited in note 2) (arguing that judicial enforcement of
the conventional nondelegation doctrine "would produce ad hoc, highly discretionary rulings").
140 Manning, 2000 Sup Ct Rev at 256 (cited in note 103).

therefore contradicts the values that nondelegation is supposed to

serve.
This clever argument sounds like a pun. If judicial narrowing of a
statute is legislative behavior, striking down a statute must be legisla-
tive behavior as well. For in a world without judicial review, both nar-
rowing a statute and striking it down (that is, repealing it) require leg-
islation. When courts strike down a statute, they rewrite it (so that it
says nothing) in violation of the bicameralism and presentment argu-
ments, but Manning does not object to Marbury-stylejudicial review.
So why begrudge courts the more limited power to narrow? Of course,
it's odd to describe judicial review as equivalent to the repeal of a law.
But this is just the reductio ad absurdum of Manning's argument,
which rests on the definitional fiat that a narrowing interpretation is
equivalent to rewriting. In fact, the canon of avoidance doesn't apply,
by its own terms, if the statute is clear.' So "rewriting" is not only a
tendentious description of the canon's application, it's an inaccurate
one.
More important, Manning forgets his own argument about the
values Article I, § 7 is supposed to serve. One is to protect residents of
small states from exploitation by residents of big states. Another is to
reduce interest group influence over policymaking. A third is to re-
duce the influence of passion on the legislative process. When the
Court narrows a delegating statute rather than striking it down, it
serves all these purposes. It makes it harder for Congress to delegate,
and so it makes it harder for Congress to do the bad things that dele-
gation supposedly permits.
Manning also appeals to an argument made by Mashaw.''
Mashaw points out that when the Court narrows a statute in order to
avoid delegation problems, the original legislation survives in the nar-
rowed form, and can be changed only with great difficulty. A majority
of the House, a majority of the Senate, or the president (unless super-
majorities can be obtained in both houses) can block the change. By
contrast, when the Court strikes down a statute under the nondelega-
tion doctrine, the original legislation disappears, and the House, the
Senate, and the president are back to the status quo, with (presuma-
bly) similar incentives to change it. Manning concludes that the sec-
ond chain of events is superior to the first on bicameralism and pre-
sentment grounds. The legislatively narrowed replacement statute
must satisfy bicameralism and presentment; the judicially narrowed
statute does not.
141 See George Moore Ice Cream Co, Inc v Rose, 289 US 373,379 (1933) (facing the ques-
tion of a statute's constitutionality because Congress's intent was clear).
142 See Manning, 2000 Sup Ct Rev at 257 n 172 (cited in note 103) (discussing Mashaw,
Greed at 105 (cited in note 2)).

All this is true, but Manning argues as though having bills go

through bicameralism and presentment is a good in itself and forgets
his own premise that bicameralism and presentment are good only
because they serve constitutional values, such as protecting residents
of small states and minimizing interest group influence. If we take an
ex ante perspective, we can understand the effects of the two rules
more systematically. Under the nondelegation doctrine, Congress will
enact narrow statutes in order to avoid reversal by the courts. Under
the canon of avoidance, Congress will enact narrow or broad statutes
but in any event will expect the broad statutes to be narrowed by the
courts. In both cases, Congress knows full well what will happen, or is
likely to happen, and so will craft the bills with these contingencies in
mind.
Both bills will need to satisfy bicameralism and presentment, so
the constitutional values, in both cases, will be met. Consider, for ex-
ample, the plight of residents of small states. Under the nondelegation
doctrine, they will not bother to resist broad delegations, and will
lobby hard to influence narrow delegations. Their overrepresentation
in the Senate will ensure that the resulting narrow delegation will be
biased in their favor, thus serving the appropriate constitutional value.
Under the canon of avoidance, residents might try to influence broad
delegations-for fear that otherwise a court would interpret them nar-
rowly against small state interests, but they might believe otherwise as
well-and they will lobby hard to influence narrow delegations. Their
overrepresentation in the Senate will ensure that the resulting delega-"
tion-whether broad or narrow-will be biased in their favor, thus
serving the constitutional commitment to protecting small states. The
argument applies mutatis mutandis to the other constitutional values
that, according to Manning, are served by restriction of delegation.
We conclude that using the canon of avoidance to narrow the
scope of statutory delegations is simply a weak version of the non-
delegation doctrine-the conventional wisdom all along. If the Consti-
tution prohibited delegations, then either doctrine would be a plausi-
ble way for courts to enforce the underlying constitutional values that
delegation threatens. The choice between the two doctrines would
then turn on the competence of courts, the existence of conflicting
constitutional values, and so forth. But because, as we have argued, the
Constitution does not prohibit delegations, both the nondelegation
doctrine and the corresponding use of the canon of avoidance should
be regarded with skepticism. Indeed, the nondelegation doctrine is a
mistake. Statutory interpretation that construes delegations narrowly
can be justified, if at all, only on the ground that the underlying inter-
pretive theory lets the judges employ clear statement canons that lack
constitutional underpinnings.

CONCLUSION
Delegation of powers is so common in public and private life, and
has been so common since time immemorial, that critics looking for
constitutional grounds for banning this practice must carry a heavy
burden. Yet nothing in the language or structure of the Constitution
supports their position, and the arguments from democratic theory
and public choice theory are exceedingly weak-conjectures at best,
backed up by anecdotes rather than systematic evidence. For these
reasons, courts should finally shake off the cobwebs of the old juris-
prudence and acknowledge that the nondelegation doctrine, and its
corollaries for statutory interpretation, are dead.

Interring The Nondelegation Doctrine

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Interring The Nondelegation Doctrine

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University of Chicago Law School

Journal Articles Faculty Scholarship

Interring the Nondelegation Doctrine

Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles

Part of the Law Commons

A large academic literaturediscusses the nondelegationdoctrin4 which is said to bar Con-

One of the most exhaustively analyzed topics in public law is the

t Professor of Law, University of Chicago.

HeinOnline -- 69 U. Chi. L. Rev. 1721 2002

such a doctrine (either through constitutional review or through statu-

HeinOnline -- 69 U. Chi. L. Rev. 1722 2002

that few now bother remembering. The existing literature is insuffi-

sumptions doctrine does not apply to noncontractual claims).

HeinOnline -- 69 U. Chi. L. Rev. 1723 2002

ground that a grant conferring "excessive" discretion upon the execu-

HeinOnline -- 69 U. Chi. L. Rev. 1724 2002

tions, because in the delegation setting there is no underlying constitu-

I. Two VIEWS OF NONDELEGATION

HeinOnline -- 69 U. Chi. L. Rev. 1725 2002

ating rules pursuant to valid statutory authority isn't lawmaking, but

B. The Delegation Metaphor

HeinOnline -- 69 U. Chi. L. Rev. 1726 2002

17 In the view of nondelegation proponents, either excessive discretion or excessive

HeinOnline -- 69 U. Chi. L. Rev. 1727 2002

it is more redolent of the naive view than of the delegation metaphor.

HeinOnline -- 69 U. Chi. L. Rev. 1728 2002

permissible scope or precision of otherwise valid statutory grants. This

1. Text and structure.

21 See US Const Art 1,§ 8,cl 3.

HeinOnline -- 69 U. Chi. L. Rev. 1729 2002

A related attempt to justify the delegation metaphor appeals to

2 Lawson, 88 Va L Rev at 344 (cited in note 3).

HeinOnline -- 69 U. Chi. L. Rev. 1730 2002

HeinOnline -- 69 U. Chi. L. Rev. 1731 2002

2. History and precedent.

34 500 US 160 (1991).

HeinOnline -- 69 U. Chi. L. Rev. 1732 2002

a) Originalunderstandingand early practice. The earliest ex-

HeinOnline -- 69 U. Chi. L. Rev. 1733 2002

grants of statutory authority to executive agents. 2 The convention de-

HeinOnline -- 69 U. Chi. L. Rev. 1734 2002

it would follow that the whole power of legislation might be trans-

HeinOnline -- 69 U. Chi. L. Rev. 1735 2002

58 Id (citing Act of April 30, 1790,1 Stat 119,121)."

HeinOnline -- 69 U. Chi. L. Rev. 1736 2002

b) Judicial decisions. What is true of legislative precedent

HeinOnline -- 69 U. Chi. L. Rev. 1737 2002

Court's terse dismissal of the claim suggests the absence of constitu-

66 23 US (10 Wheat) 1 (1825).

HeinOnline -- 69 U. Chi. L. Rev. 1738 2002

70 See Part III.A for a discussion of nondelegable powers.

HeinOnline -- 69 U. Chi. L. Rev. 1739 2002

metaphor, a metaphor that continued forward into the twentieth cen-

professional historians, the best conclusion is that the delegation

HeinOnline -- 69 U. Chi. L. Rev. 1740 2002

rests upon nondelegation proponents to justify an important implied

3. The slippery slope.

79 Mistretta,488 US at 415 (Scalia dissenting).

HeinOnline -- 69 U. Chi. L. Rev. 1741 2002

Act, invalidated on nondelegation grounds in 1935,3 to have been.)

HeinOnline -- 69 U. Chi. L. Rev. 1742 2002

esoteric legal principle, as the final barrier. Far better to rely on a

II. DELEGATION IN POLITICAL AND ECONOMIC THEORY